Opinion
A23-0214
12-15-2023
In re the Marriage of: Marie Ann Schroeder, petitioner, Appellant, v. Justin Robert Schroeder, Respondent.
Benton County District Court File No. 05-FA-18-1592
Considered and decided by Larkin, Presiding Judge; Wheelock, Judge; and Kirk, Judge. [*]
ORDER OPINION
Sarah I. Wheelock, Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant-mother Marie Ann Schroeder challenges the district court's default order in favor of respondent-father Justin Robert Schroeder that modified the primary residence, school district, and parenting-time schedule for their two children. Mother argues that the notice of motion father served upon her was inadequate because (1) father served mother by email and mother was self-represented at the time, (2) the notice failed to provide a clear time for the hearing on the motion, and (3) the notice failed to include the required language from Minn. R. Gen. Prac. 303.01(c). Mother also argues that the district court abused its discretion by ordering a de facto change of custody without making one of the findings required by Minn. Stat. § 518.18(d)(iv) (2022).
2. The district court dissolved the parties' marriage in May 2019, and as part of the dissolution, the parties were granted joint physical and joint legal custody of the children. Mother's home was the primary residence.
3. In December 2022, father served mother by email with a notice of motion and motion accompanied by a supporting declaration and exhibits. The notice of motion and motion was a form document stating that father would move the district court to order changes in the children's primary residence and school district, the parenting-time schedule, and child support. The document contained a handwritten date and time for the hearing on the motion-January 11, 2022, at 10:15 a.m. The notice did not advise mother of her obligation to file responsive documents, as required by the Minnesota Rules of General Practice. Father served and filed the motion, declaration, and exhibits the same day. Father alleged in his declaration that, since their dissolution, mother had changed residences seven times, refused to pick the children up at the scheduled times, failed to ensure adequate medical care for the children, failed to provide medical insurance for the children, and withheld the children from him on at least one weekend. Father said that his biggest concern was that mother began providing adult content of herself on an online platform. He asserted that her use of the platform had placed the children in dangerous situations because her posts attracted stalkers who followed her in stores when she had the children with her and also led to her apartment being broken into on two separate occasions. He further alleged that the children were afraid of being left home alone in her apartment because of the break-ins. Finally, after finding graphic videos of her on their son's iPad, he was concerned that mother may inadvertently expose the children to explicit images of her.
The hearing was scheduled for January 11, 2023; the notice incorrectly stated the year.
4. The district court held a remote hearing via videoconferencing technology on January 11, 2023, at just after 10:15 a.m. Mother did not appear at the hearing and had not responded in writing as required by Minn. R. Gen. Prac. 303.03(a)(3). Because mother did not appear or file the required responsive papers, the district court stated during the hearing that it would grant father's motion "by default."
5. The following day, mother's attorney filed a letter with the district court explaining that mother had retained him after unsuccessfully attempting to join the remote hearing. Mother's attorney maintained that mother read the handwritten time for the hearing as 10:45 a.m., rather than 10:15 a.m., and asked that the district court "vacate the Order, if an Order was issued from that hearing, without a formal motion based upon the mistake with respect to the time of the hearing." The district court issued a form order denying this request.
6. The same day, the district court issued its written order granting father's motions for changes in the children's primary residence, school district, and parenting-time schedule and denying the child-support request. It based its written order on mother's failure to file a written response or appear at the motion hearing. And it found that a change in circumstances had occurred that made it in the children's best interests to modify their primary residence.
The district court affixed the order with a seal indicating that it was the judgment of the court. We refer to it as an order.
7. Mother's attorney then sent a second letter to the district court, this time requesting a hearing on a motion for reconsideration under Minn. R. Gen. Prac. 115.11.Mother argued that the district court's order was improper and inequitable because father served her by email and because the hearing time written on the notice was illegible. Mother also argued that the district court had modified custody and that its findings of fact were insufficient to support a de facto custody modification because it had failed to find child endangerment as required by Minn. Stat. § 518.18(d)(iv). The district court issued a second form order in response, denying the request for a hearing and stating that there would be no change to the current order. Mother appeals.
Rule 115.11 provides that "[m]otions to reconsider are prohibited except by express permission of the court" and that a party shall request permission to file such a motion via letter.
8. Mother failed to follow the appropriate procedure to reopen a district court's order, which is a motion under Minn. Stat. § 518.145, subd. 2 (2022). Mother also did not raise her notice-deficiency argument based on rule 303.01(c) in her correspondence to the district court.
9. Generally, we will not consider matters not argued to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). But when the interests of justice require, we may consider issues not raised before the district court. Minn. R. Civ. App. P. 103.04; see Korf v. Korf, 553 N.W.2d 706, 709-10 n.2 (Minn.App. 1996) (considering issue not raised in district court when it was briefed by both parties without objection). Given mother's attempts to participate in the instant litigation by joining the hearing, albeit late, and retaining counsel and filing correspondence with the district court within 24 hours, we are persuaded that we may consider mother's notice-deficiency argument in the interests of justice.
10. Mother's challenge that the notice was deficient for failure to include the language required by rule 303.01(c) is a challenge to whether she was effectively served. The rules of service are to be strictly followed, and whether service was proper is a question of law that we review de novo. In re Welfare of T.D., 631 N.W.2d. 806, 808 (Minn.App. 2001).
11. The Minnesota Rules of General Practice provide:
All motions and orders to show cause shall contain the following statement:
The Rules establish deadlines for responding to motions. All responsive pleadings shall be served and filed with the court administrator no later than 7 days before the scheduled hearing. The court may, in its discretion, disregard any responsive pleadings served or filed with the court administrator less than 7 days before such hearing in ruling on the motion or matter in question.Minn. R. Gen. Prac. 303.01(c) (emphasis added). There is no dispute that father's motion did not contain the rule 303.01(c) language.
12. While our caselaw does not address the impact of failure to include the rule 303.01(c) language in a notice, we find guidance in T.D., 631 N.W.2d. 806. In that juvenile-protection case, we reversed a district court's default order terminating a mother's parental rights based in part on the notice's failure to include the required "statement describing the purpose of the hearing and the possible consequence of the hearing that custody of the child may be removed from the parent(s)." T.D., 631 N.W.2d at 809-10 (quoting Minn. R. Juv. P. 44.03(c) (1999)). We reasoned that the failure to comply strictly with the statutory requirements rendered the notice deficient and service of process ineffective. Id. at 810.
13. We reach the same conclusion here. The district court premised its default order in part on mother's failure to file responsive pleadings. But father's notice did not notify mother of her obligation to do so and is therefore deficient. In light of the deficient notice, reversal is required.
IT IS HEREBY ORDERED:
1. The district court's order is reversed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.