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Cepek v. Cepek

August 03, 2004

IN RE THE MARRIAGE OF: CONNIE AILEEN CEPEK, N/K/A CONNIE AILEEN VAN VALKENBURG, PETITIONER, APPELLANT,
v.
SCOTT ANTHONY CEPEK, RESPONDENT.



Dakota County District Court File No. F4-94-15085.

Considered at Special Term and decided by Toussaint, Chief Judge; Anderson, Judge; and Minge, Judge.

SYLLABUS BY THE COURT

1. A custody evaluator who is designated a party to a custody proceeding is not authorized to act as an advocate for the child and therefore cannot be an "adverse" party in an appeal of the custody determination.

2. Because a custody evaluator cannot be an "adverse" party, failure to timely serve the notice of appeal on the custody evaluator is not a jurisdictional defect requiring dismissal of the appeal.

The opinion of the court was delivered by: Toussaint, Chief Judge

Motion to dismiss denied

SPECIAL TERM OPINION

This appeal arises from a motion brought by respondent Scott Anthony Cepek to modify custody of the parties' two minor children and to find appellant Connie Aileen Van Valkenburg in contempt for failure to facilitate visitation and for interference with respondent's visitation. In a July 2, 2002, order, the district court appointed Dr. James Gilbertson, Ph.D., as custody evaluator for the minor children of the parties. The order directed that Dr. Gilbertson be made a party to the proceeding and authorized him to bring motions, serve discovery, and in all other respects have the same authority as any party under the rules of general practice. The order directed Dr. Gilbertson to conduct an independent investigation and to submit a report addressing several issues. The order states that Dr. Gilbertson shall be discharged 30 days after the date of the entry of the final order unless a party requests a hearing and issues a subpoena to Dr. Gilbertson. In the resulting report, Dr. Gilbertson recommended joint physical and legal custody, with increased access to the children for respondent.

The district court later waived the 30-day period to request a hearing because the parties were attempting to reach a settlement. An evidentiary hearing was held after the efforts to settle failed. After the hearing, the district court issued an order awarding the parties joint legal custody and expanding respondent's parenting time. The order denies respondent's motion to find appellant in contempt, but the order awards respondent attorney fees in the amount of $15,000. Judgment was entered on October 9, 2003. This appeal was filed and served on respondent's counsel after the district court disposed of appellant's motion for amended findings by order dated January 13, 2004.

On April 9, respondent filed a motion to dismiss the appeal on the ground of appellant's failure to timely serve the notice of appeal on Dr. Gilbertson. Appellant opposed the motion. Respondent filed a reply.

DECISION

Unless a different time is provided by statute, an appeal may be taken from a judgment within 60 days after its entry and from an appealable order within 60 days after any party serves written notice of its filing. Minn. R. Civ. App. P. 104.01, subd. 1. Certain types of proper and timely postdecision motions, including a motion to amend or make findings of fact under Minn. R. Civ. P. 52.02, extend the appeal time. Minn. R. Civ. App. P. 104.01, subd. 2. If a proper and timely postdecision motion is filed, the time for appeal of the order or judgment that is the subject of the motion runs for all parties from the date of service by any party of notice of filing of the order disposing of the last such motion outstanding. Id.

Appellant's motion for amended findings extended the time to appeal the underlying October 9 order and judgment. Respondent served a notice of filing of the January 13 order disposing of the motion by mail and facsimile transmission on January 14, 2004. The appeal period thus expired on Monday, March 15, 2004, which was 60 days after respondent's notice of filing was served by facsimile transmission on January 14. See Minn. R. Civ. App. P. 126.01 (incorporating Minn. R. Civ. P. 6.01, which provides that if last day of prescribed period falls on Saturday, Sunday, or legal holiday, period is extended until end of next business day); Huntsman v. Huntsman, 633 N.W.2d 852, 854 n.1 (Minn. 2001) (noting that respondent's service of notice of filing of order disposing of postdecision motion by facsimile transmission triggered 60-day appeal period).

An appeal is taken by filing a notice of appeal with the clerk of the appellate courts and serving the notice on the adverse party or parties within the appeal period. Minn. R. Civ. App. P. 103.01, subd. 1. Timely service of the notice of appeal on the adverse parties is a jurisdictional requirement. Hansing v. McGroarty, 433 N.W.2d 441, 442 (Minn. App. 1988), review denied (Minn. Jan. 25, 1989). Although appellant timely filed the notice of appeal with the clerk of the appellate courts and ...


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