This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re the Marriage of:

Ramona Elizabeth Bourke, petitioner,



Andreas Milton Bourke,


Filed April 14, 1998

Reversed and Remanded

Kalitowski, Judge

Chisago County District Court

File No. F696782

Sharon G. Benson, Central Minnesota Legal Services, 830 W. St. Germain, Suite 309, P.O. Box 1598, St. Cloud, MN 56302 (for respondent)

Richard J. Sheehan, Harvey, Sheehan & Benson, 7401 Metro Blvd., Suite 555, Minneapolis, MN 55439 (for appellant)

Considered and decided by Davies, Presiding Judge, Kalitowski, Judge, and Foley, Judge.*

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



Appellant Andreas Milton Bourke contends the district court abused its discretion by imposing a sanction as a condition to reopening a default judgment. We reverse and remand.


In a marriage dissolution proceeding, a party must seek review of a default judgment by moving the district court for relief under Minn. Stat. § 518.145 (1996). Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 493 (Minn. App. 1995). In reviewing the denial or conditional granting of a motion to vacate a default judgment, we determine whether the district court abused its discretion. Foerster v. Folland, 498 N.W.2d 459, 460 (Minn. 1993).

Respondent Ramona Elizabeth Bourke requested, and was granted, a default judgment when appellant and his counsel failed to attend a May 5, 1997, hearing. Appellant contends the district court abused its discretion in granting the default judgment because respondent failed to comply with the applicable notice requirements. We agree. The rules of general practice specify that a party may move for a default judgment if

the defaulting party has appeared by a pleading other than an answer, or personally without a pleading, and has not affirmatively waived notice of the other party's right to a default hearing, the moving party shall notify the defaulting party in writing at least ten (10) days before the final hearing of the intent to proceed to Judgment.

Minn. R. Gen. Pract. 306.01(b).

It is undisputed that respondent failed to provide any notice to appellant prior to seeking the default judgment. Respondent, however, argues that appellant's failure to appear occurred at a prehearing conference, and therefore, the court properly disposed of the proceedings without further notice to appellant. See Minn. R. Gen. Pract. 305.02(b), (allowing the district court to dispose of proceedings without notice if a party fails to appear at a prehearing conference). We disagree. The record indicates the May 5, 1997, hearing was a continuance of appellant's earlier motion to obtain temporary, unsupervised visitation rights, not a prehearing conference. Because this was a motion hearing, we conclude the district court abused its discretion in entering a default judgment without the requisite notice.

We recognize that under certain circumstances a default judgment may be an appropriate sanction for a party's failure to attend a motion hearing. The Minnesota Supreme Court stated:

[C]ourts are vested with considerable inherent judicial authority necessary to their vital function--the disposition of individual cases to deliver remedies for wrongs and justice freely and without purchase; completely and without denial; promptly and without delay, conformable to the laws. The task of determining what, if any, sanction is to be imposed is implicated by the broad authority provided the trial court.

Patton v. Newmar Corp., 538 N.W.2d 116, 118-19 (Minn. 1995) (quotation marks and citations omitted). We have also noted, however, that "[a]n order for judgment by default is the most severe sanction the court can impose * * *." Hennepin County ex rel. Bartlow v. Brinkman, 364 N.W.2d 458, 459 (Minn. App. 1985), rev'd on other grounds, 378 N.W.2d 790 (Minn. 1985). "As a result, the discretion of the court should be carefully exercised when the sanction [of default judgment] is considered." Id. (citing Trans World Airlines, Inc. v. Hughes, 332 F.2d 602, 614 (2d. Cir. 1964)).

Here, the district court did not sanction appellant by denying his motion for visitation and assessing costs incurred by respondent. Rather, the court imposed the "most severe" sanction of entering a default judgment and decree without notice to appellant. Because the evidence does not support entry of a default judgment as a sanction for appellant's failure to appear at his continued motion hearing, the district court abused its discretion. Further, we conclude that because entry of the default judgment was improper, the district court abused its discretion in conditioning its reopening on the payment of sanctions. We note, however, that on remand, the district court is not precluded from assessing reasonable and appropriate sanctions based on costs incurred by respondent as a result of appellant's failure to attend the motion hearing.

Reversed and remanded.