Robert H. Schumacher, Judge Isanti County District Court File No. F2-97-1315
Considered and decided by Schumacher , Presiding Judge; Lansing , Judge;
and Kalitowski , Judge.
Where notice of filing is served by facsimile and by mail on the same day, the period for response does not include the three additional days that would have been included under Minn. R. Civ. P. 6.05 had service been completed only by mail.
The opinion of the court was delivered by: Robert H. Schumacher, Judge
Appellant Dawn Marie Kloncz, n/k/a Black, (mother) brings this appeal from a determination by the district court that the motion for amended findings and a new trial of respondent James Andrew Kloncz (father) was timely served. We reverse.
The marriage of the parties was dissolved, and they share joint legal custody of their two children. Mother has physical custody. By order filed September 25, 2002, the district court granted mother permission to permanently move the residence of the parties' minor children to the United Kingdom. The court's order also addressed issues of parenting time, child support, and transportation costs and denied father's request for change in custody.
On November 27, 2002, mother sent father notice of filing using two methods of service: facsimile and mail. Thirty-three days later, on December 30, father personally served a motion for amended findings and new trial. Thereafter, mother made a countermotion, arguing father's motion was not timely served and therefore precluded the court from amending the original order or addressing the motion for new trial.
The district court granted in part and denied in part father's December 30 motions. As to mother's countermotion, the court made the following findings: notice of filing occurred just before the Thanksgiving holiday; due to the holiday, father's attorney was not aware of the service by facsimile; father timely served his motion based on the mailed service; and mother did not suffer any harm from the three-day delay in service as the time for hearing was extended anyway due to other factors.
Is a motion for amended findings and new trial timely if served 33 days after notice of filing where notice of filing was served on the ...