This opinion will be unpublished and

may not be cited except as provided by

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








In re the Marriage of:

Sheri Lyn Dolan, f/k/a Sheri Lyn Brandt, petitioner,


Reno Lee Brandt,


Filed January 25, 2005


Wright, Judge


Dakota County District Court

File No. F1-02-14698



Reno L. Brandt, 20 First Avenue Northeast, P.O. Box 455, Lidgerwood, ND  58053-0455 (pro se appellant)


Merlyn L. Meinerts, Jagow, Groves, Meinerts & Holbeck, 350 West Burnsville Parkway, Suite 625, Burnsville, MN  55337 (for respondent)



            Considered and decided by Kalitowski, Presiding Judge; Wright, Judge; and Crippen, Judge.*


U N P U B L I S H E D  O P I N I O N




In a dissolution proceeding, respondent brought a post-decree motion to modify custody. The district court granted respondent’s motion and awarded her sole legal custody of the parties’ minor child.  Appellant moved to vacate the modification and respondent filed a cross-motion to designate appellant as a nuisance litigant.  The district court denied appellant’s motion as untimely and granted respondent’s motion.  On appeal, appellant argues that (1) the district court erred in denying the motion to vacate; (2) the hearing on the motion to vacate violated his right to procedural due process; and (3) the district court abused its discretion by designating appellant as a nuisance litigant.  We affirm.



            The marriage of appellant Reno Brandt and respondent Sheri Dolan was dissolved in North Dakota in July 1999.  The parties received joint legal custody and Dolan received sole physical custody of their minor child.  Both parties subsequently moved to Minnesota.

In September 2002, Dolan petitioned the district court in Dakota County, Minnesota, for sole legal custody.  Brandt opposed the motion on jurisdictional grounds.  The district court concluded that it had jurisdiction over the matter, and following a hearing on January 10, 2003, at which Brandt failed to appear, the district court awarded Dolan sole legal custody on January 23, 2003.

In December 2003, Brandt moved to vacate the custody modification, renewing his jurisdictional argument.  In response, Dolan moved to designate Brandt as a nuisance litigant and requested that Brandt be required to obtain permission from the chief judge before initiating further proceedings.

At a hearing on these motions, Brandt asserted that he lacked notice of the January 10, 2003, hearing and that a district court document to the contrary was fraudulent.  The district court denied Brandt’s request to call Dolan as a witness.  In its order, the district court denied Brandt’s motion to vacate and granted Dolan’s motion to designate Brandt as a nuisance litigant.  This appeal followed.



            Brandt challenges the district court’s determination that his motion to vacate was untimely and contends that the motion should have been heard and granted on its merits.[1]  If the district court erred by denying the motion as untimely, but the moving party otherwise is not entitled to relief, then the district court’s error is harmless.  Reid v. Strodtman, 631 N.W.2d 414, 419-20 (Minn. App. 2001).  For the purpose of this analysis, we assume, without deciding, that the district court erred on timeliness so as to address Brandt’s motion on its merits.

            Brandt argues that the district court lacked personal and subject matter jurisdiction.  This argument is consistent with a motion to vacate for issuance of a void judgment.  See Minn. R. Civ. P. 60.02(d).  Because the existence of jurisdiction is a question of law, we review the district court’s jurisdiction determinations de novo.  Bode v. Minn. Dep’t of Natural Res., 612 N.W.2d 862, 866 (Minn. 2000).

            Regarding personal jurisdiction, Brandt waived any defect by failing to challenge service and by participating in the proceeding.  See Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 492-93 (Minn. App. 1995) (holding that, when party is given opportunity to contest jurisdiction but does not timely file challenge, defects in personal jurisdiction are waived).  Even if Brandt had not waived this issue, his residency in Minnesota was sufficient to establish personal jurisdiction.  See Burnham v. Superior Court, 495 U.S. 604, 613-15, 110 S. Ct. 2105, 2112-13 (1990) (plurality opinion) (holding that in-state service establishes personal jurisdiction); id. at 637, 110 S. Ct. at 2124 (Brennan, J., concurring in the judgment).  Thus, this aspect of Brandt’s challenge to the district court’s jurisdiction fails.

In matters relating to child custody, subject matter jurisdiction in both Minnesota and North Dakota is governed by relevant provisions of the states’ respective versions of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified at Minn. Stat. §§ 518D.101–.317 (2002) and N.D. Cent. Code §§ 14-14.1-01–.1-37 (2004).  The court of the state initially issuing a child custody decree obtains continuing, exclusive jurisdiction.  See Minn. Stat. § 518D.202(a).  A court of another state may not modify the decree except in accordance with section 203 of the UCCJEA, codified at Minn. Stat. § 518D.203,which provides in relevant part:

[A] court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under section 518D.201, paragraph (a), clause (1) or (2), and: . . .

(2)  a court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.


Minn. Stat. § 518D.203.  A court has jurisdiction to make “an initial determination” under section 201(a)(1) of the UCCJEA, codified at Minn. Stat. § 518D.201(a)(1), if “this state is the home state of the child on the date of the commencement of the proceeding.”  Minn. Stat. § 518D.201(a)(1).  When the residence of both parents and the child are no longer in the state where a child custody decree was issued, another state where the parties reside may modify the decree and thus obtain continuing, exclusive jurisdiction.  Unif. Child Custody Jurisdiction and Enforcement Act §§ 202, 203 cmt., (amended 1997) 9 U.L.A. 676 (1999 & Supp. 2004); Schroeder v. Schroeder, 658 N.W.2d 909, 911 (Minn. App. 2003); see generally David C. Minneman, Annotation, Construction and Operation of Uniform Child Custody Jurisdiction and Enforcement Act, 100 A.L.R.5th 1 (2002 & Supp. 2004).

            When Dolan moved to modify custody, neither the parties nor the child resided in North Dakota.  Furthermore, Minnesota was the new home state of the child and the parents.  Based on these facts, the district court obtained subject matter jurisdiction to modify the custody provisions of the North Dakota dissolution decree.

            Brandt alternatively contends that his motion to vacate should be granted on the basis of fraud.  See Minn. R. Civ. P. 60.02(c).  To prevail on such a motion, the movant must demonstrate by clear and convincing evidence that an adverse party engaged in fraud.  Turner v. Suggs, 653 N.W.2d 458, 466 (Minn. App. 2002); Regents of Univ. of Minn. v. Medical Inc., 405 N.W.2d 474, 480 (Minn. App. 1987), review denied (Minn. July 15, 1987).

The record establishes that Brandt received a notice generated by district court administration stating that a custody modification hearing would be held on January 10, 2003.  Brandt contends that this notice was a forgery and that he actually received notice that the hearing would take place on January 3, 2003.  But Brandt offers no evidence of a hearing scheduled on January 3 or a notice stating that a hearing was set for January 3, 2003, and the district court administrator’s records show that a hearing was actually noticed for and held on January 10.  In the absence of clear and convincing evidence of fraud, we conclude that the district court did not err in denying Brandt’s motion to vacate on this ground. 


            Brandt also alleges a series of procedural errors, asserting that the cumulative effect constituted a denial of his right to procedural due process.  Because these matters relate to district court procedure and constitutional law, they present questions of law, which we review de novo.  See Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn. 2003) (reviewing de novo interpretation of procedural rule); State v. Heath, 685 N.W.2d 48, 55 (Minn. App. 2004) (reviewing de novo constitutional due process issues).

            Brandt initially argues that he was denied a full adversarial hearing, including the right to call witnesses and rebut opposing arguments.  In family court proceedings, hearings on a party’s motion are governed by Minn. R. Gen. Pract. 303.03, which provides in relevant part that “[m]otions . . . shall be submitted on affidavits, exhibits, documents subpoenaed to the hearing, memoranda, and arguments of counsel unless otherwise ordered by the court for good cause shown.”  Minn. R. Gen. Pract. 303.03(d).  When a movant does not make a prima facie case for relief and does not demand an evidentiary hearing, it is not a violation of rule 303.03 for the district court to deny an evidentiary hearing.  Lutzi v. Lutzi, 485 N.W.2d 311, 317 (Minn. App. 1992). 

Here, Brandt did not state any basis for relief and did not request an evidentiary hearing.  Nor has Brandt identified any significant evidence that would have been produced at an evidentiary hearing.  Thus, it was not procedural error for the district court to deny Brandt an evidentiary hearing on the motion.

            That the district court’s decision is not a violation of the Minnesota Rules of General Practice, however, does not necessarily foreclose a conclusion that a violation of the constitutional right to procedural due process still occurred.  When a protected interest is at stake, the state and federal constitutions require that court procedures provide reasonable notice and an opportunity to be heard.  Programmed Land, Inc. v. O’Connor, 633 N.W.2d 517, 528-29 (Minn. 2001).  Rights incident to the parent-child relationship are subject to the constitutional protections of procedural due process.  M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S. Ct. 555, 564 (1996).

            An adversarial hearing with notice ordinarily is sufficient to satisfy the requirements of procedural due process.[2]  Ruberto v. County of Washington, 572 N.W.2d 293, 298 (Minn. 1997).  The exclusion of evidence from such a hearing will not necessarily establish a violation of procedural due process.  Schocker v. State, Dep’t of Human Rights, 477 N.W.2d 767, 771 (Minn. App. 1991), review denied (Minn. Jan. 30, 1992).  When material issues of fact are not in dispute, an evidentiary hearing is not required.  Codd v. Velger, 429 U.S. 624, 627-28, 97 S. Ct. 882, 884 (1977) (per curiam).

            Brandt’s substantial claims are that the district court lacked jurisdiction and that his absence from the modification hearing was due to a fraudulent notice.  With respect to jurisdiction, no issues of material fact were raised and thus no hearing was required.  With respect to the fraud, the allegations were unfounded and thus foreclosed any reasonable dispute.  Nevertheless, Brandt received a full opportunity to brief his arguments and proceed with an adversarial hearing.  We hold that these procedures were sufficient to ensure Brandt’s constitutional right to procedural due process.


            Brandt also challenges the district court’s imposition of a requirement that he obtain written permission from the chief judge before bringing additional motions against Dolan.  Because such a ruling is an exercise of inherent judicial power, we review it for an abuse of discretion.  See Mower County Human Servs. v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1996) (contempt); Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 209 (Minn. 1993) (temporary injunction).

            It is well settled that a district court has equitable power to bar a person from engaging in nuisance litigation, especially when that person engages in deceptive or abusive practices.  State ex rel. Ryan v. Cahill, 253 Minn. 131, 134, 91 N.W.2d 144, 147 (1958); Liedtke v. Fillenworth, 372 N.W.2d 50, 52 (Minn. App. 1985), review denied (Minn. Sept. 13, 1985).  In Love v. Amsler, we approved the practice of requiring a nuisance litigant to obtain permission from the chief judge before bringing any action.    441 N.W.2d 555, 560 (Minn. App. 1989), review denied (Minn. Aug. 15, 1989).  We concluded that this requirement, which curtailed an abuse of the judicial process, also respected nuisance litigants’ rights of access to the courts.  Id.

            Here, the record indicates that Brandt has a significant history of nuisance litigation against Dolan, bringing proceedings in state district court in North Dakota and federal district court in Iowa.  These actions support the conclusion that, absent a modicum of judicial oversight, Brandt is likely to continue to harass Dolan through vexatious litigation.  We, therefore, conclude that it was not an abuse of discretion for the district court to require Brandt to obtain the chief judge’s permission before proceeding against Dolan.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.


[1] Dolan argues that the analysis here should be guided by Minn. Stat. § 518.145, subd. 2 (2002), which provides for the vacation or modification of certain dissolution orders and decrees.  This statute was not considered by the district court, and Dolan made no such objection on this point.  Moreover, there are few significant differences between the statute and Minn. R. Civ. P. 60.02.  See Maranda v. Maranda, 449 N.W.2d 158, 164 n.1 (Minn. 1989) (“Minn. Stat. § 518.145, subd. 2 is virtually identical to Rule 60.02.”).  When a motion to vacate is based on fraud, the statute arguably provides a more liberal standard than the rule.  See id. at 165 (holding that motion to vacate under statute need not be limited to fraud upon the court).  But this difference is not material to our analysis on Brandt’s motion to vacate.  See Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 493-94 (Minn. App. 1995) (considering whether motion to vacate was untimely by referencing both statute and rule).

[2]  To determine whether a hearing comports with procedural due process, we ordinarily consider the three-part balancing test set out by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 903 (1976).  See generally 3 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 17.4 (3d ed. 1999).  However, the authorities cited are sufficiently broad in application to govern our analysis here.