In re Dell v. Gaughan

Full title: In Re the Matter of: Kathleen Marie Dell, petitioner, Respondent, v…

Court: Minnesota Court of Appeals

Date published: Aug 31, 1999

No. C6-99-632 (Minn. Ct. App. Aug. 31, 1999)

Opinion

No. C6-99-632.

Filed August 31, 1999.

Appeal from the District Court, Dakota County, File No. F7-94-14139.

John R. Kempe, McCullough, Smith, Wright Kempe, P.A., (for respondent)

Timothy S. Choal, (for appellant)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Parker, Judge.^_

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

This opinion will be unpublished and may not be cited except as provided by Minn.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

UNPUBLISHED OPINION

PARKER, Judge

This is an appeal from a trial court order of April 8, 1999, vacating two prior default orders and determining that, pursuant to the Uniform Child Custody Jurisdiction Act, Minn. Stat. § 518A.01-.25 (1998), Ohio is the appropriate and convenient forum in which to litigate the parties' ongoing custody issues. We affirm.

DECISION 1. Law of the Case

Appellant argues that the trial court's orders of August 1998 and December 1998, which made preliminary child custody and jurisdiction rulings, are the law of the case and therefore cannot be vacated. But law of the case is relevant only when there is a prior appellate decision in the case. See McLain v. McLain, 569 N.W.2d 219, 225 (Minn.App. 1997) (determining under similar circumstances that the prior jurisdictional rulings did not involve law of the case), review denied (Minn. Nov. 18, 1997). See also Loo v. Loo, 520 N.W.2d 740, 744, n. 1 (Minn. 1994) (law of the case ordinarily applies where an appellate court has ruled on a legal issue and remanded the case for further proceedings). Thus, we conclude that, contrary to appellant's contention, the August and December trial court orders are not the law of the case.

2. Vacation of Judgments

Appellant further argues that the trial court erred in vacating properly obtained default orders. The parties' analysis of whether the trial court's decision to vacate the August and December orders relies on cases involving vacation of judgments pursuant to Minn.R.Civ.P. 60.02. The fact that neither of these orders was reduced to judgment does not preclude use of rule 60.02. See Minn.R.Civ.P. 60.02 (allowing court to grant relief from an order). Whether to vacate a ruling under Minn.R.Civ.P. 60.02 is discretionary with the district court. See, e.g., Hinz v. Northland Milk Ice Cream Co., 237 Minn. 28, 31, 53 N.W.2d 454, 457 (1952) (trial court decisions on whether to vacate a default judgment are reviewed for abuse of discretion). On this record, appellant has not shown that the district court abused that discretion.

3. Jurisdiction Under UCCJA

The "home state" of the child is not Minnesota but Ohio. See Minn. Stat. § 518A.02, subd. (e) (1998) (defining "home state"). It is possible that Minnesota could retain jurisdiction over these matters if it were in the "best interests" of the child. See Minn. Stat. § 518A.03, subd. (b) (1998). But Ohio has concurrent jurisdiction as the child's home state. If two states are determined to have jurisdiction, Minn. Stat. § 518A.07 (1998) requires an analysis of the most convenient forum. The trial court followed the provisions of section 518A.07, conferred with the Ohio court, and determined that Ohio was a more appropriate and convenient forum. The trial court correctly applied the analysis and made the statutorily recommended communications with the Ohio court. On these facts, we hold there was no abuse of the trial court's discretion.

Affirmed.