This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Judith Dale Carlson,
f/k/a Judith Dale Malanowski,


Lester Lawrence Malanowski,

Filed November 23, 1999
Reversed and remanded
Klaphake, Judge

Koochiching County District Court
File No. C7-96-591

Susan Mahony-St. Clair, 900 Third Street, International Falls, MN 56649 (for respondent)

Steven A. Nelson, 210 Fourth Ave., International Falls, MN 56649 (for appellant)

Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


Lester Malanowski appeals from an order denying his motion to vacate a default judgment entered against him on April 14, 1998. That judgment awarded respondent Judith Dale Malanowski, n/k/a Judith Dale Carlson, $9,379 "as and for child and medical support arrearages" and held appellant in contempt for "his willful failure to appear and comply with this Court's Order to Show Cause dated January 5, 1998."

Because the district court rendered its decision without giving appellant an opportunity to present argument or additional support for his motion, we reverse and remand.


In February 1997, respondent moved to enforce the terms and conditions of the parties' 1984 Illinois divorce decree and to obtain a judgment for child and medical support arrearages. Appellant, in turn, moved to reduce his child support obligation based on a significant decrease in his income.

The parties negotiated a settlement that was approved by the district court in June 1997. In this settlement, respondent agreed to a substantial decrease in appellant's monthly child and medical support obligation; the settlement also contained language rendering it "null and void" should appellant fail to allow for automatic transfer of child support into respondent's checking account or fail to enter into a binding agreement with the child's dentist for repayment of an outstanding debt.

In August 1997, respondent moved to have the settlement declared null and void based on appellant's alleged failure to meet its conditions; she further moved to renew her earlier motion to enforce the terms of the original decree. Appellant was not properly served with notice of this motion and did not appear at the September 5, 1997 hearing.

Following this hearing, the district court entered an order finding that appellant had "willfully failed" to comply with the terms of the settlement and ordering the former decree reinstated. On November 24, 1997, a money judgment for $4,137 was entered against appellant for child and medical support arrearages based on the obligations set in the original decree. Appellant was further ordered to personally appear on January 5, 1998, and show cause why he "should not be held in contempt for [his] willful failure to comply with the terms and conditions of this Court's June 25, 1997 Order" approving the parties' settlement. A copy of this judgment and order to show cause was personally served on appellant.

Appellant failed to appear at the January 5, 1998 hearing. An order was entered holding him in contempt and entering a money judgment against him for $9,379 for back child and medical support arrearages. Judgment was entered on this order on April 14, 1998. This judgment was personally served on appellant.

In October 1998, the district court issued an order for appellant's arrest. A hearing was held on December 4, 1998 at which appellant appeared. Appellant's attorney requested that the contempt order be reversed "until there has been a hearing" and that the "entire order be withdrawn" because he "has presented proof * * * that [he has fully and completely complied with] the prior judgment of this Court in June of 1997." At the end of the hearing, the court "released [appellant from his warrant] on his promise to appear when summoned."

Appellant thereafter moved to vacate the April 14, 1998 judgment under Minn. R. Civ. P. 60.02. A hearing was scheduled for January 5, 1999, and rescheduled for February 25, 1999 at respondent's request. Without a hearing on the motion to vacate, the district court issued an order on February 8 denying appellant's motion. This appeal followed.


November 24, 1997 Judgment

Appellant first argues that the November 24, 1997 judgment is void because he was not properly served with the underlying motion and did not appear at the September 5, 1997 hearing. See Lange v. Johnson, 295 Minn. 320, 324, 204 N.W.2d 205, 208 (1973) (valid judgment cannot be rendered against party without due service of process). We agree. There is no evidence to suggest that appellant consented to the jurisdiction of the court or otherwise made a general appearance subjecting him to the jurisdiction of the court. See Peterson v. Eishen, 512 N.W.2d 338, 340 (Minn. 1994). In addition, once respondent sought to circumvent the terms of the June 1997 settlement and reinstate her February 1997 motion to enforce the provisions of the original decree, appellant should have been given an opportunity to reinstate his counter-motion to reduce his child support obligation.

Thus, the November 24, 1997 judgment, which found that appellant had willfully failed to comply with the terms of the parties' June 1997 settlement and ordered the original decree and its obligations reinstated, is void.


Appellant next argues that the district court had no jurisdiction to find him in contempt without an appearance. See Westgor v. Grimm, 381 N.W.2d 877, 879-80 (Minn. App. 1986) (court has no authority to find person guilty of contempt unless person has first appeared before court, voluntarily or involuntarily, and been examined). Again, we agree.

Although appellant appeared at the December 4, 1998 hearing, he was not examined and the court did not consider whether he was unable to comply despite a good faith effort. See Mower County Human Servs. v. Swancutt, 551 N.W.2d 219, 223 (Minn. 1996) (due process requires alleged contemnor be given opportunity to show compliance or reasons for failure to comply and inability to comply despite good faith effort); see also Minn. Gen. R. Pract. 309.01 (contents of order to show cause and supporting affidavits), 309.02 (contemnor must appear in person before court "to be afforded the opportunity to resist the motion for contempt by sworn testimony"). Thus, to find appellant in contempt and confine him, the district court must hold another hearing at which appellant's appearance is required and at which he is examined.

Motion to Vacate under Rule 60.02

Appellant finally challenges the district court's denial of his motion to vacate the April 14, 1998 default judgment. On appeal, we must determine whether the district court abused its discretion in denying appellant's motion to vacate. See Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 492 (Minn. App. 1995).

To be entitled to relief under Minn. R. Civ. P. 60.02, appellant was required to show (1) he has a reasonable defense on the merits, (2) he has a reasonable excuse for failing to appear, (3) he has acted with due diligence after notice of entry of the judgment, and (4) no substantial prejudice will result to respondent. Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30, 53 N.W.2d 454, 456 (1952). The burden is on appellant to prove all four elements. Nelson v. Siebert, 428 N.W.2d 394, 395 (Minn. 1988).

The district court in this case denied appellant's motion prior to the rescheduled hearing, before appellant was given an adequate opportunity to explain the basis for his motion. Although a district court has broad discretion when dealing with procedural motions, we conclude that discretion was abused in this case. See Minn. R. Gen. Pract. 303.03(d) (motions shall be submitted on affidavits and arguments of counsel unless otherwise ordered by court for good cause shown). Both parties should be given an opportunity to present arguments and additional documentation on their respective positions. On remand, the court also must consider the effect that the now-voided November 24, 1997 judgment has on the April 14, 1998 judgment, which is based, in part, on the void judgment. If appellant can show that he, in good faith, has complied with the terms of the parties' June 1997 settlement, he may have shown a reasonable defense on the merits. Of course, appellant must still explain why he did not respond when personally served with entry of these orders and judgments.

Reversed and remanded.