Minnesota Association for Justice Divorce and Family Law Columns

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Summer 2006

Supreme Court

Third Party Custody

Lewis-Miller v. Ross

(Filed March 9, 2006)

Mother of two minor children passed away, having made written confirmation of her intention to provide for Appellant Father and Respondent Aunt to have joint legal and physical custody of the children. Respondent sought sole legal and physical custody due to concerns Respondent asserted about the living environment for the children when in Appellant’s care. The district court dismissed Respondent’s petition for lack of standing.

Respondent appealed to the Court of Appeals, which reversed and remanded (in favor of Respondent) for an evidentiary hearing, ruling that Respondent’s petition was subject to a two-step process in district court. The first step is for the third party petitioner (in this case Respondent) to allege facts with competent supporting evidence. The second step is an evidentiary hearing to determine whether the third party petitioner establishes statutory standing by clear and convincing evidence.

Appellant Father sought Supreme Court review. The Supreme Court affirmed the Court of Appeals reversal of the district court, ruling that a party commencing a third-party child custody proceeding by valid petition and supporting affidavits is entitled to an evidentiary hearing when the facts alleged, if proven, would satisfy the criteria of the applicable statute.

Post-Trial Procedure

In Re the Marriage of Rubey and Vannett

(Filed May 4, 2006)

The district court awarded Respondent Mother sole custody of the parties’ minor child, and Appellant Father brought a timely motion for amended findings and/or new trial. The motion hearing did not take place, nor was a timely extension issued, within sixty days, as required by Minn. R. Civ. P. 59.03. Appellant’s attorney understood (in error) that the court would be issuing a timely extension order. The district court denied the request for amended findings or new trial for lack of jurisdiction, since neither the required hearing nor the required extension within 60 days had occurred.

Appellant sought review of the underlying divorce decree and the denial of the post-trial relief from the Court of Appeals. The Court of Appeals dismissed the appeal in light of the fact that the post-trial motion – for which the hearing did not occur in a timely manner – did not toll the appeal period, and therefore the appeal was untimely.

Appellant sought and obtained review of the Supreme Court. Based upon a confusing trail of case precedent, the Supreme Court ruled that the requirement that a hearing take place within 60 days is a procedural tool that does not divest the district court of jurisdiction. The Supreme Court affirmed the district court’s rejection of the request for post-trial relief, based upon the untimely motion hearing. However, the Supreme Court ruled that Appellant’s appeal to the Court of Appeals was timely, because Appellant’s service and filing of the post-trial motion was timely, and an untimely post-trial hearing does not prevent the otherwise timely motion from tolling the appeal period. The Supreme Court therefore reversed and remanded to the Court of Appeals for review of the underlying divorce decree.

Court of Appeals

Child Custody

Dailey v. Chermak

(Filed February 21, 2006)

The district court awarded the parties joint legal custody of the parties’ minor child, and sole physical custody to Respondent Mother. The findings of fact contained a provision, “The Court’s ruling on physical custody is conditional upon [Respondent Mother] remaining in the Twin Cities metropolitan area.” Approximately one year later, Respondent sought permission to relocate the child to South Dakota. The district court granted the motion over Appellant’s objection, ruling that (1) a custody provision conditional on the custodial parent’s geographical location is legally unenforceable; (2) the conclusions of law did not contain the conditional provision, only the findings of fact mentioned the restriction; and (3) there was no basis pertaining to the child’s best interests to impose the geographical restriction.

Pursuant to Appellant’s request for review, the Court of Appeals affirmed. The Court of Appeals ruled that the district court erred by characterizing the geographical restriction as legally unenforceable, since in fact, the law does not preclude such geographical restrictions under certain circumstances. However, the Court of Appeals ruled that the conclusions of law, that contained no geographical restriction, prevailed over the findings of fact that contained the restriction, and that Appellant had established no basis pertaining to the child’s best interests for preventing Respondent’s relocation of the child to South Dakota.

Spousal Maintenance

In re the Marriage of McConnell v. McConnell

(Filed March 14, 2006)

The district court awarded Appellant Husband temporary spousal maintenance from Respondent Wife, rather than permanent maintenance, based upon the expectation that Appellant would become self-supporting in the future.

On review, the Court of Appeals reversed and remanded for reconsideration of the amount and duration of spousal maintenance. There was undisputed medical evidence of Appellant’s diabetes, coronary artery disease, renal disease, high blood pressure, cataracts, leg amputations, and finger amputations. Given the broad range of medical concerns, the Court of Appeals ruled that the absence from the record of specific evidence regarding the availability and physical requirements of jobs, and Appellant’s ability to perform them with his physical limitations, rendered the expectation of self-support to be pure speculation.