1. The Minn. R. Civ. P. 59.03 requirement that a motion for a new trial be heard within 60 days after the notice of filing of the decision or order is a procedural tool and not a jurisdictional requirement.
2. Respondent did not waive objection to an untimely hearing on a motion for new trial/amended findings when the objection was made after expiration of the 60-day time limit for hearing such motions.
3. The district court's findings of fact regarding the circumstances leading up to an untimely hearing on a new trial/amended findings motion were not clearly erroneous, and the district court did not abuse its discretion when it dismissed appellant's motion for new trial/amended findings based on those findings of fact.
4. Appellant's due process claim is not properly before this court.
5. A motion for new trial/amended findings need not be timely heard to toll the time for appeal, and therefore the court of appeals erred when it dismissed appellant's appeal as untimely under Minn. R. Civ. App. P. 104.01, subd. 2.
The opinion of the court was delivered by: Page, Justice.
Considered and decided by the court en banc without oral argument.
This case arises from the dissolution of appellant Thomas Rubey and respondent Valerie Vannett's marriage. Although they settled some issues, Rubey and Vannett went to trial to determine who would be awarded physical custody of their child. After the trial, the district court issued an order granting sole physical and legal custody to Vannett. Rubey filed a motion for a new trial or amended findings (new trial/amended findings motion). Because the hearing on the motion occurred outside of the 60-day time frame required by Minn. R. Civ. P 59.03, the district court found that it lacked jurisdiction and dismissed the motion. Rubey appealed and the court of appeals dismissed the appeal for lack of jurisdiction, determining that, under Minn. R. Civ. App. P. 104.01, subd. 2, the appeal was untimely. We granted review and now reverse and remand to the court of appeals for further proceedings.
Rubey and Vannett were married in 1999 and had one child before separating in October 2002. As part of their dissolution, Rubey and Vannett stipulated to a property settlement, maintenance, and legal custody of their child, but were unable to resolve who would have physical custody of their child.
After a trial on that issue, the trial court issued its Findings of Facts, Conclusions of Law, Order for Judgment, and Judgment and Decree on June 21, 2004. The order for judgment granted Vannett sole physical and legal custody of the child. Vannett served Rubey with a Notice of Filing and Entry of Decree by mail on June 23, 2004. After being served with the Notice of Filing and Entry of Decree, Rubey had 30 days in which to serve new trial and amended findings motions. Minn. R. Civ. P. 59.03.*fn1
Rubey served and filed a motion for new trial/amended findings on July 23, 2004. It is undisputed that Rubey served the motion within the required 30-day time period. In addition to requiring that the motion be served within 30 days, the rule requires that a new trial motion be heard within 60 days of service of the Notice of Filing and Entry of Decree "unless the time for hearing be extended by the court within the 60-day period for good cause shown." Id. To comply with Rule 59.03, the hearing here should have taken place or an extension granted on or before August 25, 2004. Rubey's notice of motion and motion did not provide a date certain for the hearing. On July 28, 2004, Rubey's attorney telephoned the trial court's scheduling clerk to schedule a date for the hearing on the motion. The ...