This opinion will be unpublished and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

A03-1761

 

Robert G. Neal, petitioner,
Respondent,

vs.

Connie Neal,
Appellant.

 

Filed July 20, 2004

Affirmed

Minge, Judge

 

Hennepin County District Court

File No. DW 229308

 

 

Bruce D. Kennedy, Kennedy Law Office, 2151 Hamline Avenue North, Suite 206, Roseville, MN 55113 (for respondent)

 

Connie L. Neal, 19210 County Road 29, New Ulm, Minnesota 56073 (pro se appellant)

 

            Considered and decided by Halbrooks, Presiding Judge; Harten, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

 

MINGE, Judge

 

            Appellant wife in this dissolution proceeding challenges the district court’s denial of maintenance, termination of the reservation of retroactive maintenance, denial of her motion to reopen the judgment, division of the parties’ property, and denial of her motion for attorney fees.  Appellant also alleges that she was denied due process.  We affirm.

FACTS

 

Appellant Connie Neal and respondent Robert Neal were married in November 1987.  Appellant is a pharmacist and respondent is a clinical psychologist.  During the marriage, the couple conducted a business based on respondent’s role as a consultant, with an emphasis on vocational and economic assessments.  At some date prior to the dissolution, the parties and their business came under investigation by the Minnesota Attorney General’s Office, which led to multiple charges against both parties and convictions of fraud.

In March 1997, respondent commenced a marriage dissolution proceeding.  Appellant sought temporary maintenance for employment retraining, and in an August 1997 order, the referee ordered respondent to pay $4,000 per month in temporary maintenance commencing in June 1997.  Appellant’s counsel withdrew in April 1998.  A June 1998 order is the last indication in the record of appellant’s whereabouts until September 1999.

In July 1998, the district court reviewed the temporary maintenance order and vacated the existing $4,000 per month award.  The order stated, however, that any future motions for maintenance by appellant could request payments retroactive to June 1, 1997.  In August 1998, after a series of orders regarding sale of the homestead, the district court entered default judgment denying appellant any level of maintenance.  But, in apparent recognition of appellant’s absence from the proceeding, the district court stated that appellant’s “right to maintenance is reserved retroactive to June 1, 1997.”

In 1999, appellant, through newly obtained counsel, moved the court to reopen the judgment, alleging fraud and misrepresentation by respondent.  Appellant’s motion to reopen was later joined with a motion for maintenance.  At an August 1999 hearing on the motion to reopen, respondent objected to appellant’s facsimile statements offered by her counsel on the ground that they were not notarized and therefore not affidavits.  The court inquired whether original notarized statements existed, to which appellant’s counsel stated, “No, because of her location in order to get a notary, that would divulge where she was.”  The judge noted the objection to appellant’s statements and stated:

So, motion is denied as to the reopening.  The reservation of maintenance remains alive at such time, I will indicate for the record that I told Counsel in Chambers and I will repeat it here that the Court is disinclined to make any judgments about the issue of maintenance so long as Ms. Neal is a fugitive from justice.  We will not know what her living expenses will be until we know whether she is going to be incarcerated or not, and . . . this would be the first case that I am aware of where somebody required somebody to pay maintenance to somebody who is in prison . . . I am certainly disinclined to make any award of maintenance to assist Ms. Neal in continuing to be a fugitive from justice.  If one of my sister colleagues in St. Paul . . . has issued a Bench Warrant, I am certainly not going to ask Mr. Neal to send her money to some undisclosed P.O. Box so that she can stay a fugitive.

 

In a September 1999 order, the court denied both the motion to reopen the judgment and the motion for maintenance because of appellant’s failure to provide the court with proper affidavits.

            Appellant next filed a motion in October 2002, seeking “$3,000 per month in permanent spousal maintenance.”  In response, respondent’s motion sought, among other things, an order “[d]enying all spousal maintenance to [appellant] past, present, and future, and terminating the court’s jurisdiction to award maintenance.”  The district court issued an order in June 2003 simply denying appellant’s motion.  The court then issued an August 2003 order to clarify the denial of maintenance in the June 2003 order.  The clarifying order stated that appellant’s motion was denied without prejudice prospectively from the time of her motion (October 2002) and was denied with prejudice with regard to maintenance arrearages for any time period before the filing of her motion.

D E C I S I O N

I.

The first issue is whether, on the facts and record in this case, the district court abused its discretion in denying maintenance to appellant.  Absent an abuse of the district court’s “wide discretion” in awarding maintenance, “the [district] court’s determination is final.”  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  An abuse of discretion occurs if the district court resolves the matter in a manner that is “against logic and the facts on record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  This court will not disturb a maintenance award if it has a “reasonable and acceptable basis in fact and principle.”  DuBois v. DuBois, 335 N.W.2d 503, 507 (Minn. 1983). 

While Minn. Stat. § 518.552, subd. 2 (2002), lists factors to be considered in setting the amount and duration of maintenance, no single factor is dispositive.  Erlandson, 318 N.W.2d at 39.  Such factors include consideration of the moving spouse’s financial resources, the duration of the marriage, the standard of living during the marriage, the age and physical and emotional conditions of the moving spouse, and the ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance.  Minn. Stat. § 518.552, subd. 2.  The party seeking the maintenance award has the burden of demonstrating need.  See id., subd. 1.

Appellant appears to argue that the district court erred in failing to award maintenance to her in its June 2003 order.  Although appellant’s brief in this appeal addresses each of the factors contained in Minn. Stat. § 518.552, this factual information was not presented to the district court.  The affidavit appellant filed with the district court simply details the history of the case and the findings in the temporary relief order.  By contrast, respondent submitted to the district court an affidavit containing evidence regarding each of the relevant factors listed in section 518.552.  Because appellant’s affidavit failed to address the statutory factors demonstrating her need for maintenance, the record before the district court does not contain the evidence necessary to support a grant of maintenance.  That record only contains evidence to support a denial of maintenance.  In this circumstance, the district court did not abuse its discretion in denying appellant’s motion for maintenance.

II.

The second issue involves a narrower aspect of the June and August 2003 maintenance orders: whether, in entering that order, the district court was required by Minn. Stat. § 518.64, subd. 2(d) (2002), to include specific findings supporting termination of appellant’s right to retroactive maintenance.  Appellant argues that the termination modified her maintenance, that the statute mandates findings when a modification predates service of a motion, and that the proceedings should be remanded to the district court for findings, and from appellant’s perspective, a more favorable result.

Minnesota does allow for retroactive modification of maintenance with the requirement that if the modification covers a period earlier than the date of service of notice of the motion requesting modification, the district court must make express findings that certain conditions have been met.  Id., subd. 2(d).  But, this court has previously distinguished between a modification of a support obligation under subdivision 2, and modification of a support order under Minn. Stat. § 518.64, subd. 1 (2002).  See Franzen v. Borders, 521 N.W.2d 626, 630 (Minn. App. 1994).  In this regard, an obligation requires payment of a specified amount of support, while an order is a determination regarding maintenance that may or may not contain a payment obligation.  Under the statute, district court findings are not required for modification of an order unless that order also modifies a payment obligation.  Minn. Stat. § 518.64, subd. 1.

In the case before us, prior to June 2003, the outstanding, current orders did not require respondent to pay maintenance to appellant.  In fact, at no time since the August 1998 judgment in this proceeding has there been any support obligation to be modified under Minn. Stat. § 518.64, subd. 2.  Because the district court’s June 2003 order terminated a reservation of retroactive maintenance that did not require any actual payment of a maintenance support obligation, the provisions of Minn. Stat. § 518.64, subd. 2(d), are not applicable and the district court did not err in terminating the retroactive reservation without findings.  This conclusion should not be interpreted as discouraging district courts from making findings in these situations.  Indeed, including findings in any situation is preferred.  We simply conclude that we will not reverse the district court for failing to include findings in situations such as those in this proceeding.

III.

The third issue is whether appellant’s challenge to the district court’s September 1999 order denying her motion to reopen the judgment based on allegations of fraud is timely.  The basic rule is that unless an appeal is taken within 60 days of entry of a final order, the appeal will not be considered.  Minn. R. Civ. App. P. 104.01, subd. 2.  Since the order was dated September 1999, the normal 60-day deadline is long past.  To avoid application of that deadline, appellant points out that the September 1999 motion had two parts: (1) reopening the judgment; and (2) maintenance.  Appellant argues that because the district court reserved jurisdiction on the issue of maintenance, the September 1999 order was not final and was not immediately appealable.  Appellant asserts that the issue of reopening the judgment did not become final and appealable until the issue of maintenance was decided in the August 2003 order. 

“The word ‘final’ when used to designate the effect of a trial court’s judgment or order means that the matter is conclusively terminated so far as the court issuing the order is concerned.”  City of Chaska v. Chaska Township, 271 Minn. 139, 142, 135 N.W.2d 195, 197 (1965).  In the area of family law, the Minnesota Supreme Court has recognized that matters are conclusive and may be appealed, even though parts of such orders may be subject to future modification.  See Angelos v. Angelos, 367 N.W.2d 518, 519-20 (Minn. 1985).  The court has stated:

Application to such [maintenance] modifications of the general rule that orders denying motions for modification of judgments are nonappealable would be contrary to the legislative scheme in enacting statutes authorizing the modification – if modification is erroneously denied, appeal must be available . . . .  As such, any final orders – those denying as well as granting modifications of custody, visitation, maintenance, and support – are appealable as of right.

 

Id.  (footnote omitted).

            Appellant cites to Doering v. Doering, 629 N.W.2d 124 (Minn. App. 2001), review denied (Minn. Sept. 11, 2001), to support her claim that the September 1999 order was not final until June 2003 and but can still be appealed.  We note that the situation in the case before us bears significant similarity to the facts in the Doering proceeding.  However, the rulings are distinguishable.  Unlike the situation in Doering, the district court in this case made final and appealable rulings denying both motions in its September 1999 order.  In Doering, both the motion to reopen and the motion for change in child support were simultaneously active and the court was completing consideration of these motions in a series of hearings and orders.  Id. at 127-28.  In the case before us, the district court was not maintaining an active role on the combined motions.  Here, more than four years passed between consideration of the initial matter by the district court and the subsequent consideration in this appeal.  In the Doering case the period was five months.  Id. at 126-28.  Although in the case before us, the district court’s reservation of jurisdiction on maintenance was open-ended, it was thus not an interim position.  As a result, the district court in this case did not keep appellant’s motions to reopen the judgment and for maintenance “alive,” but rather merely reserved jurisdiction for future maintenance motions while allowing finality.

Because the district court’s September 1999 order was final and appealable, the time for appellant to appeal the denial of her motion to reopen the judgment runs “from the service by any party of notice of filing of the order.”  Minn. R. Civ. App. P. 104.01, subd. 2.  As noted previously, the rules provide appellant with 60 days after the service of notice to appeal.  Id., subd. 1.  The record reflects that appellant served notice of filing of the September 1999 order on November 24, 1999.  Appellant’s current appeal was filed on November 17, 2003.  Because four years have passed since the service of notice, the appeal is not timely, and we are without jurisdiction to consider the appeal.

IV.

            Appellant next challenges the property division but does not specify which order she challenges.  The property division initially was determined in the August 1998 judgment.  The time for appellant to appeal from this final judgment ended 60 days after its entry.  Minn. R. Civ. App. P. 104.01, subd, 1.  Therefore, to the extent appellant challenges the judgment, her appeal is not timely.

            Appellant also filed a motion to reopen the dissolution judgment pursuant to Minn. R. Civ. P. 60.02, alleging fraud and misrepresentation.  This motion, in part, alleged that respondent withheld information regarding the marital character of the parties’ homestead and other certain funds.  The district court denied appellant’s motion in its September 1999 order.  Because the time for appeal has expired, we do not reach the merits of appellant’s argument.[1] 

V.

            Appellant argues that she is entitled to attorney fees  “based on both her need for fees and [respondent’s] conduct.”  The district court addressed the issue of attorney fees several times in various orders.  Appellant does not specify from which order addressing attorney fees she is appealing.  Nonetheless, the last order in the record addressing the issue of attorney fees was filed on September 29, 1999.  As we determined above, the time to appeal from this order has expired.  Therefore, the issue of attorney fees is not properly before this court, and we do not further address appellant’s argument. 

VI.

Another issue raised by appellant is whether she was denied due process of law by lack of notice of proceedings.  Government action may not deprive individuals of liberty or property interests without due process, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 7 of the Minnesota Constitution.  U.S. Const. amends. 5, 14; Minn. Const. art I, § 7.  See Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn. 1988) (stating that due process guarantees are the same under both state and federal constitutions).  Due process protections include “notice, a timely opportunity for a hearing, the right to be represented by counsel, an opportunity to present evidence and argument, the right to an impartial decisionmaker, and the right to a reasonable decision based solely on the record.”  Humenansky v. Minn. Bd. of Med. Exam’rs, 525 N.W.2d 559, 565 (Minn. App. 1994) (citing Goldberg v. Kelly, 397 U.S. 254, 267-68, 90 S. Ct. 1011, 1020 (1970)), review denied (Minn. Feb. 14, 1995).  Similarly, statutes and court rules require notice to parties in judicial proceedings.  See, e.g., Minn. Stat. § 518.11 (2002); Minn. R. Civ. P. 3.01-.02, 4.01.  We review de novo the procedural due process afforded a party.  Zellman ex rel. M.Z. v. Indep. Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn. App. 1999), review denied (Minn. July 28, 1999).

Appellant makes various claims that she was denied due process by respondent’s failure to serve her with notice of certain motions to and orders from the district court.  Appellant contends that she did not receive notice regarding the parties’ dissolution proceedings, thus resulting in a default judgment.  Appellant claims that the district court judge and certain staff engaged in a conspiracy to falsify documents and deny her service of notice.  Appellant also contends that counsel for respondent knew that she would be spending the month of May 1998 with her mother in New Ulm and should have known to serve or forward her notice of the pretrial conference at that address.  Finally, appellant claims that she was denied notice because she was receiving medical treatment. 

            There is no indication in the record that respondent or the district court knew the whereabouts of appellant or any attorney representing her from May 1998, until appellant again retained counsel in August 1999.  In December 1998, the district court ordered all motions and orders to be served on appellant at her mother’s address.  The record shows that respondent actually served copies of all such relevant orders and motions to the address of appellant’s mother during appellant’s disappearance.  We also note that there is no indication in the record showing that appellant was actually hospitalized for any period, despite her claims that doctors had made such recommendations. 

If a party goes into hiding or declines to cooperate, the requirement of notice and the opportunity to reopen and challenge court orders and judgments are limited.  Generally, parties have an obligation to cooperate with a forum and respond to discovery requests.  See Ins. Corp. of Ireland, Ltd. v. Co. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707-08, 102 S. Ct. 2099, 2107 (1982) (litigant must cooperate with forum in resolving issues that arise).  Minnesota law recognizes that a party to a dissolution proceeding may not take steps to avoid service of notice.  See Atwood v. Atwood, 253 Minn. 185, 193, 91 N.W.2d 728, 734 (1958) (holding that an opposing party cannot avoid liability by discharging his attorney of record, who was authorized to receive notice, and removing from the state).  In a criminal context, a defendant is deemed to have waived his or her right to be present at a trial when the defendant “voluntarily and without justification absents himself or herself after trial has commenced.”  Minn. R. Crim. P. 26.03, subd. 1(2)(1).  A party to a marriage dissolution who has full knowledge of the commencement of the proceedings should not be accorded greater rights than that of a criminal defendant. 

Here, appellant received notice of the petition for marital dissolution in March 1997 and participated in the proceedings involving temporary maintenance.  Thus, to the extent appellant claims she was unaware of the dissolution, she misrepresents the record.  Statements in the record by the district court and by one of appellant’s attorneys indicate that appellant absented herself for an extended period to avoid arrest and sentencing in her criminal case.  Appellant has not explained her whereabouts.  Her decision not to provide information regarding her whereabouts for a fifteen-month period appears to have been a tactical decision on her part and the inability to provide her with notice was a result of her disappearance. 

            We also note that parties may waive the right to claim failure of notice.  The Minnesota Supreme Court has stated:

It is settled law that a motion to the court, or other proceeding by a party with reference to the decision, which presumes his knowledge that it has been made, and by which he seeks to protect his own interest against the rights of the other party under the decision, will be regarded as a waiver of his right to a notice of the decision. 

 

Otting v. Ploetz, 188 Minn. 401, 402, 247 N.W. 804, 805 (1933) (quotation omitted).  In other words, if it is clear that a litigant becomes aware of a proceeding and participates in litigation, he cannot later complain of a lack of notice.

The record shows that appellant first attempted to challenge district court action by her August 1999 motion to reopen the judgment, which was later joined with a motion for maintenance in September.  Appellant then filed an appeal to this court in November 1999, which was dismissed due to her failure to submit briefs.  In October 2002, appellant again moved the district court to order maintenance.  Having taken such action, she cannot now assert that she was denied due process for want of notice of proceedings that occurred approximately five years prior to the filing of her current appeal.  Appellant’s earlier participation in this dissolution litigation effectively serves as a waiver of her right to notice of the initial stages of the proceeding.  In sum, we conclude that on this record, appellant’s complaint about lack of notice does not present a meritorious due process claim.

VII.

            Finally, we note that respondent’s brief to this court is substantially nonconforming with the Minnesota Rules of Civil Appellate Procedure.  See Minn. R. Civ. App. P. 132.01.  We “may disallow the prevailing party’s costs or disbursements or both, in whole or in part, for a violation of [the Minnesota Rules of Civil Appellate Procedure] . . . .”  Minn. R. Civ. App. P. 139.05.  Although we accept and consider the arguments that respondent’s brief offers despite its nonconformance, respondent, as the prevailing party, shall not be allowed to tax to appellant as a disbursement his briefing expenses associated with this appeal.  See Minn. R. Civ. App. P. 139.02.

            Affirmed.

 



[1] We note that Minn. R. Civ. P. 60.02 does not apply to marriage dissolution proceedings.  A parallel finality/reopening provision is found in Minn. Stat. § 518.145, subd. 2 (2002).  The results in this case are not affected by which provision is used.