This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-97-664

In Re the Marriage of:

Eileen Ann Frenzel

n/k/a Eileen Ann Sommers,

Petitioner Below,

Carver County Community

Social Services,

Respondent,

vs.

Dale Otto Frenzel,

Appellant.

Filed November 10, 1997

Appeal dismissed

Foley, Judge**

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

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.

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

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.

FACTS

The Carver County child support agency brought a motion for contempt against appellant Dale Otto Frenzel in October 1996. His ex-wife, Eileen Frenzel, n/k/a Eileen Sommers, was a named party in the action. Based on that motion, the district court issued an order to show cause, which informed appellant that he had failed to comply with three court orders that required him to pay child support, provide insurance, pay arrearages, and notify the county child support office of any change in his address, residence, or employment. The order required appellant to bring to the hearing his statement of earnings, income tax returns, W-2 or 1099 form, paycheck stubs, and a completed financial statement. The court also ordered appellant to bring to the hearing verified information about medical, hospitalization, or dental insurance that he carried and could provide for his children.

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.

D E C I S I O N

Carver County contends that appellant has failed to perfect this appeal because he failed to serve notice of appeal on his ex-wife. "Timely service on adverse parties has long been jurisdictional." Hansing v. McGroarty, 433 N.W.2d 441, 442 (Minn. App. 1988), review denied (Minn. Jan. 25, 1989). When a party appeals, the party must file with the appellate court a notice of appeal that contains proof of service on the adverse parties. Minn. R. Civ. App. P. 103.01, subd. 1(a). An "adverse party" is one whose interest is in direct conflict with reversal or modification of the judgment on appeal. Peterson v. Joint Ind. Cons. Sch. Dist. No. 116, 239 Minn. 233, 236, 58 N.W.2d 465, 467 (1953). "Copies of all papers filed by any party shall be served by that party, at or before the time of filing, on all other parties to the appeal or review." Minn. R. Civ. App. P. 125.02.

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.

Appeal dismissed.