Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Eileen Ann Frenzel
n/k/a Eileen Ann Sommers,
Carver County Community
Dale Otto Frenzel,
Filed November 10, 1997
Carver County District Court
File No. F6-91-027435
Michael A. Fahey, Carver County Attorney, Kari L.S. Myrold, Chief Deputy County Attorney, Carver County Government Center, 600 East Fourth Street, Chaska, MN 55318-2188 (for Respondent)
James L. Berg, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN 55318 (for Appellant)
Considered and decided by Willis, Presiding Judge, Schumacher, Judge, and Foley, Judge.
Appellant contends the trial court abused its discretion when it found him in constructive civil contempt for failing to pay child support and comply with various court orders. Appellant has failed to perfect the appeal. We dismiss.
The evidentiary hearing on the order to show cause on the contempt motion was continued four times before it occurred, due to appellant's failure to produce the information requested. At each court appearance, a county attorney was present, representing the county; when Sommers was present, she represented herself. While the case was pending, the trial court issued two other orders for appellant to provide additional information to the county.
Following the evidentiary hearing, the trial court issued an order and judgment for contempt, finding that, although appellant is capable of providing support, he had willfully failed to comply with the child support order and subsequent orders of the court. The court found that appellant has a continuing child support obligation of $314 per month, as well as total arrearages of $5,246.
Based on these findings, the court found appellant in constructive civil contempt of court and ordered him to be incarcerated for 90 days, five days to be served immediately. Eighty-five days were stayed for two years with the following purge conditions: appellant inform county social services of any change of address or employment; appellant not transfer title to any of his motorcycles unless he makes a reasonable sale for their market value and turns over the proceeds to the county for child support; if appellant becomes unemployed, he shall conduct a job search and report a minimum of four applications per week to county social services; appellant make regular monthly child support payments and arrearage payments; or appellant pay his entire child support arrearages by cashier's check to the county.
This case began as a child support enforcement action arising out of the dissolution of the marriage between appellant and Sommers. Sommers cooperated with Carver County in bringing the original motion for contempt. Throughout all proceedings, however, Sommers either represented herself or did not appear. The record shows that the county did not represent Sommers.
As a general rule, county attorneys who render services in the child support enforcement program have no attorney-client relationship with the recipient. Minn. Stat. § 518.255 (1996). The original motion for contempt here contained a definition section that stated, "The County means CARVER County. * * * The Obligee means Eileen Ann Sommers." In addition, when the trial court's orders listed appearances for the record, Sommers is listed either as representing herself or as not present; the county attorney always represented only the county and the child support enforcement agency. Indeed, at oral argument, the county attorney reconfirmed that she had only represented the county's interests and had not represented Sommers. Thus, the record shows that the county did not conduct itself in a manner that should have led appellant to believe that the county attorney represented Sommers. Consequently, although the county attorney worked with Sommers to pursue her claim for child support and arrearages against appellant, the county attorney did not "represent" Sommers and, thus, could not accept service on her behalf. See Minn. R. Civ. P. 5.02 (allowing service upon attorney who represents party).
Whenever a judgment is indivisible, so that an affirmance, modification, or reversal would affect all parties, notice of appeal must be served on every party whose interest in the subject of the appeal is in direct conflict with the affirmance, reversal, or modification of the judgment on appeal. Thayer v. Duffy, 240 Minn. 234, 254-55, 63 N.W.2d 28, 40 (1953). Given that the trial court entered judgment against appellant and in favor of Sommers in the amount of $3,710, she is indeed a party in interest in direct conflict with the reversal or modification of judgment. Id.
When an appellant fails to serve a respondent with notice of appeal within 90 days from entry of judgment, this court lacks jurisdiction to consider the matter and must dismiss. Hansing, 433 N.W.2d at 442. The record is clear that appellant served the notice of appeal on the assistant Carver County attorney and the clerk of district court, but failed to serve Sommers. Consequently, appellant has failed to perfect this appeal and we must dismiss.
Notwithstanding the dismissal, we must observe that confinement in jail for a five- day fixed term, with no ability to purge the contempt, appears unreasonable.