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Mingen v. Mingen

May 27, 2004

IN RE THE MARRIAGE OF: DEBORAH K. MINGEN, PETITIONER, APPELLANT,
v.
THOMAS M. MINGEN, RESPONDENT.



SYLLABUS BY THE COURT

Although Rule 104.01, subd. 2, of the Minnesota Rules of Civil Appellate Procedure allows a party, by proper and timely post-decision motion, to extend the time to appeal from a judgment or an appealable order, a post-decision motion is not timely if it is made after the expiration of the 60-day period in which to appeal from the judgment.

The opinion of the court was delivered by: Anderson, Russell A., Justice.

Affirmed.

Heard, considered and decided by the court en banc.

OPINION

In this case, we consider whether the expiration of the 60-day period to appeal from entry of judgment under Minn. R. Civ. App. P. 104.01, subd. 1, may be revived and extended by a subsequent post-decision motion under Minn. R. Civ. App. P. 104.01, subd. 2, to amend the order that directed entry of judgment. The court of appeals dismissed the appeal as untimely because appellant's post-decision motion, filed after expiration of the time for appeal from the judgment, was untimely and therefore did not extend the appeal period. We affirm.

The marriage of Deborah and Thomas Mingen was dissolved in 1995 and, by stipulation, Thomas agreed to pay maintenance to Deborah. Seven years later, Thomas, claiming involuntary job loss, brought a motion to modify spousal maintenance payments and Deborah, by cross-motion, requested that Thomas's motion be denied and that she be awarded attorney fees. On August 16, 2002, the district court order granting Thomas's motion was filed and judgment was entered. Neither party served the other with written notice of filing of the order.

On October 21, 2002, Deborah filed a motion to amend the August 16 order, claiming that the district court had failed to consider her earlier cross-motion requesting that Thomas's motion be denied and that she be awarded attorney fees. The district court's order denying Deborah's motion to amend was filed on November 20, 2002, and on November 25, 2002, Deborah was served with written notice of filing of the November 20 order. On January 22, 2003, Deborah filed an appeal from the August 16 judgment.*fn1 After requesting memoranda from the parties on the issue of whether Deborah's appeal was timely, the court of appeals dismissed the appeal as untimely by order of March 25, 2003, and a published opinion followed on June 17, 2003. Mingen v. Mingen, 662 N.W.2d 926 (Minn. App. 2003). We granted Deborah's petition for review.

I.

Rule 104.01, subd. 1 provides that unless a different time is provided by statute, an appeal may be taken from a judgment within 60 days of its entry and from an appealable order within 60 days after service by a party of written notice of its filing.*fn2 Rule 104.01, subd. 2 provides that if a "proper and timely" post-decision motion is filed, the time to appeal from judgment or an appealable order that is the subject of the motion is tolled and does not begin to run until service of notice of filing of the order disposing of the post-decision motion. The purpose of Rule 104.01, subd. 2, is to allow a district court to rule on post-decision motions before an appeal is commenced. See Minn. R. Civ. App. P. 104.01, Advisory Committee Comment-1998 Amendments; see also Huntsman v. Huntsman, 633 N.W.2d 852, 855 (Minn. 2001).*fn3 A motion to amend findings of fact or to amend a judgment under Minn. R. Civ. P. 52.02 is a post-decision motion listed in Rule 104.01, subd. 2, that, if "proper and timely," will effectively extend the time to appeal the judgment. Rule 52.02 specifies that a motion to amend is "timely" if it is brought within the time allowed for a motion for a new trial, that is, 30 days from service of notice of filing of the decision or order. See Minn. R. Civ. P. 59.03. Rule 104.02 provides, however, that "[n]o order made prior to the entry of judgment shall be appealable after the expiration of time to appeal from the judgment."

From these provisions, the arguments of the parties are apparent. Deborah argues that because she never received service of notice of filing of the August 16 order, the 30-day time period under Minn. R. Civ. P. 52.02 to move for amended findings of fact did not begin to run, and her October 21 motion to amend the August 16 order was therefore a proper and timely post-decision motion under Rule 104.01, subd. 2. She contends that the effect of her motion was that under Rule 104.02, the 60-day period to appeal from entry of judgment did not begin until November 25, the day she was served with notice of filing of the court's November 22 order denying her post-decision motion to amend. Therefore, according to Deborah, her January 22 appeal of the August 16 judgment was timely.

Thomas argues that Deborah's October 21 motion to amend the findings of fact in the August 16 order was not timely despite the fact that she had not been served with notice of filing of the August 16 order. Thomas contends that the court of appeals was correct in concluding that a motion cannot be timely if it is made after the time to appeal the judgment has already expired, and a post-decision motion cannot revive an expired appeal period.

We interpret our rules of civil procedure de novo. Madson v. Minnesota Min. & Mfg. Co., 612 N.W.2d 168, 170 (Minn. 2000). We do not read them in isolation but read them in light of one another, interpreting them according to their purpose. See House v. Hanson, 245 Minn. 466, 473, 72 N.W.2d 874, 878 (1955) ("The words of a court rule, like those of a statute, must be taken and construed in the sense in which they were understood and intended at the time the rule was promulgated. Any other principle of construction would undermine confidence in the court's rule-making power.").

We conclude that Deborah's post-decision motion of October 21, 2002, filed after the time to appeal from the judgment had expired, was not timely. In Marzitelli v. City of Little Canada, we explained that "[i]f the time for appeal from an order expires without appeal having been taken, then the order becomes final and the district court's jurisdiction to amend the order is terminated." 582 N.W.2d 904, 906 (Minn. 1998). Under Rule 104.02, the August 16 order was no longer appealable once the time to appeal the judgment expired. Therefore, the district court no longer had ...


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