File No. F5972542

Jamie L. Kovacs, Dawn Marie Mondus, P.A., 4916 Highway 61, White Bear Lake, MN 55110 (for appellant)

Stephen M. Halsey, Moore, Halsey & Eskola, LLC, 7260 University Avenue, 160 Paco Office Center, Fridley, MN 55432 (for respondent)

Considered and decided by Amundson, Presiding Judge, Randall, Judge, and Huspeni, Judge.^*

U N P U B L I S H E D O P I N I O N

AMUNDSON, Judge

Appellant attempted to dissolve his marriage to respondent by having respondent personally served with a summons and petition for dissolution. Later, appellant recommenced the proceeding by serving respondent by publication. The result was a dissolution judgment that respondent moved to vacate. The district court granted that motion, ruling the judgment was void because the published notice was defective. Because the district court entered a default judgment before the period to answer expired, the district court did not abuse its discretion in vacating the judgment. Accordingly, we affirm.

FACTS

Appellant Charles Rieger and respondent Sharon Ann were married on November 25, 1986. The parties have one minor child, born several months before the parties were married. The record indicates that Rieger’s name appears on the child’s birth certificate and that blood tests indicated he was the child’s father. In October 1996, the parties separated. In the fall of 1996, Rieger instigated dissolution, separation, and order for protection (OFP) proceedings. In March 1997, Rieger reinstituted dissolution proceedings and requested a default hearing. Rieger then filed an amended petition for dissolution and served Ann notice by publication. In October 1997, the district court granted Rieger’s request for the default judgment and decree. On April 15, 1999, Ann filed a motion to vacate the judgment because it was entered by default before her time to answer had expired. The district court vacated the judgment, but left the dissolution intact. This appeal followed.

D E C I S I O N

“The decision to grant a motion to vacate a default judgment rests within the trial court’s discretion.” Peterson v. Eishen, 512 N.W.2d 338, 339 (Minn. 1994). But the decision as to whether a judgment is void for lack of jurisdiction does not involve a court’s discretion. Lange v. Johnson, 295 Minn. 320, 323, 204 N.W.2d 205, 208 (1973).

Under Minn. Stat. § 518.145, subd. 2 (1998), a court may relieve a party from a judgment if the judgment is void. The court that entered the judgment may vacate a void judgment at any time. Peterson, 512 N.W.2d at 341. Generally, a valid judgment cannot be rendered against a party without due service of process. Id. at 339-40.

The determination of whether service is proper is a question of law, which an appellate court reviews de novo. See Stoebe v. Merastar Ins. Co., 554 N.W.2d 733, 735 (Minn. 1996) (examining different rule of civil procedure under de novo standard); Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984) (questions of law reviewed de novo); McBride v. Bitner, 310 N.W.2d 558, 561-63 (Minn. 1981) (examining whether service is proper under de novo standard).

Rieger contends that the district court erred when it granted Ann’s motion to vacate the terms of the amended judgment and decree entered by default on October 15, 1997, arguing that the district court retained the personal jurisdiction that it received when Ann was personally served on December 26, 1996, with the original petition for dissolution of marriage that Rieger filed on October 15, 1996. Even though the original petition differs from the amended petition from which default judgment was entered, Rieger argues that the amendments to the petition did not assert new or additional claims such that service requirements needed to be met. Minn. R. Civ. P. 5.01 provides:

Except as otherwise provided in these rules, * * * every pleading subsequent to the original complaint unless the court otherwise orders * * * shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them * * *.

The original petition for dissolution of marriage differs in several ways from that upon which the district court actually entered default judgment. The first difference relates to the paternity of the parties’ minor child. The amended petition changed the statement “there is one minor child born of this marriage” contained in the original petition to “as issue of the parties, there is one minor child.” The amended petition also stated that Rieger has had custody of the parties’ minor child pursuant to the OFP. The district court was careful to point out that paternity, the existence of an OFP and custody were all integral aspects of the dissolution action. These facts affect property division, allocation of debt, residence of the homestead, custody, and visitation. Thus, we conclude the amendments to the petition were not just points of clarification, but changed the nature of the suit, requiring under Minn. R. Civ. P. 5.01 that Ann have sufficient notice of the terms.

II.

The district court did not abuse its discretion when it vacated the default judgment and decree because it lacked personal jurisdiction. The district court lacked personal jurisdiction over Ann because the default judgment was entered prior to the expiration of the time period she had to answer the petition. Minn. Stat. § 518.12 (1996) states:

The respondent shall have 30 days in which to answer the petition. In case of service by publication, the 30 days shall not begin to run until the expiration of the period allowed for publication.

Here, publication occurred on April 11, 18, and 25, 1997. Thus, the 30-day period for Ann to answer ran until May 25, 1997. The district court’s default judgment was entered on May 9, 1997. The default judgment is therefore void because it was entered before the period for Ann to answer had expired.

III.

On December 22, 1999, Ann filed a motion for attorney fees. Ann filed no supporting memorandum addressing the statutory factors for a fee award or an affidavit on her current income. Because Minn. R. Civ. App. P. 139.06, subd. 1, requires that all motions for fees include documentation to enable the appellate court to determine an appropriate amount of fees, we deny Ann’s motion for attorney fees.

Affirmed; motion denied.

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