Burkstrand v. Burkstrand

• Decision Date: 30 August 2001
• Docket Number: No. C0-00-813.,C0-00-813.
• Citation: 632 N.W.2d 206
• Parties: Linda Rae BURKSTRAND, Petitioner, Appellant, v. Steven Glen BURKSTRAND, Respondent.
• Court: Minnesota Supreme Court

632 N.W.2d 206

Linda Rae BURKSTRAND, Petitioner, Appellant, v. Steven Glen BURKSTRAND, Respondent.

No. C0-00-813.

Supreme Court of Minnesota.

August 30, 2001.

Brian L. Sobol, A. Larry Katz, Katz & Manka, Ltd., Minneapolis, for appellant.

John G. Westrick, Marcia McDowall-Nix, Westrick & McDowall-Nix P.L.L.P., St. Paul, for respondent.

Bruce A. Beneke, Janet C. Werness, St. Paul, for amicus curiae.

Heard, considered, and decided by the court en banc.

OPINION

BLATZ, Chief Justice.

This case presents the question of whether the expiration of the hearing time frames prescribed by the Domestic Abuse Act, specifically Minn.Stat. § 518B.01, subdivision 7(c) (2000), divests the district court of subject matter jurisdiction to hold a hearing on a petition for an order for protection. The court of appeals determined that the district court erred, as a matter of law, in issuing an order for protection for appellant Linda Rae Burkstrand because the district court lacked subject matter jurisdiction to hold a hearing on her petition outside the statutory time frame for conducting a hearing. We reverse.

On December 28, 1999, appellant filed a petition and supporting affidavit for an ex parte order for protection against her husband, respondent Steven Glen Burkstrand. The petition requested various types of relief including restraining respondent from acts of abuse; excluding respondent from the family residence and the children's schools; awarding appellant temporary custody of the children; and directing respondent to provide monetary support. A more limited ex parte order for protection was issued that same day restraining and enjoining respondent from abusive acts against appellant and the children, prohibiting respondent from having contact with appellant, and excluding him from the residence except to retrieve personal effects. The ex parte order also commanded respondent to appear before a referee¹ on January 6, 2000, prepared to testify and to present evidence, and stated that the order was effective until the scheduled hearing.

Respondent filed an affidavit on January 5, 2000, refuting appellant's allegations of abuse. The next day, the parties appeared with counsel before a referee. Respondent contested the order for protection and again denied the allegations of abuse, and appellant agreed to withdraw the issue of abuse against the children from the petition. The referee was informed that respondent had commenced a separate action for dissolution of the marriage; therefore, several of appellant's requests for relief were deferred to that action, and the only issue remaining before the referee was the petition based on respondent's alleged abuse of appellant.

To address that issue, the referee suggested that an evidentiary hearing commence that morning, as soon as the referee finished hearing first appearances. Appellant's counsel notified the referee that he had a conflicting court appearance, and the referee agreed to hear the rest of the calendar and return to the matter later in the day. Due to a full calendar, however, a hearing was not possible and the referee continued the matter to the following afternoon, January 7. On January 7, respondent's counsel was ill, and the hearing was again continued. The record indicates that on or about January 18, 2000, the referee and counsel conducted a telephone conference, during which appellant's counsel requested that the hearing be continued until February to accommodate counsel's vacation. Respondent, however, demanded that the hearing proceed that week. As a result, the hearing was scheduled for January 21, 2000. At the January 21, 2000 hearing, appellant again sought to continue the matter. The referee denied the motion to continue and the hearing proceeded.

Based on evidence presented at the hearing, the referee issued an order for protection valid for one year from January 21, 2000.² Respondent then retained new counsel and filed a notice of review under Minn.Stat. § 484.65, subd. 9 (2000).³ Respondent argued that the referee lacked jurisdiction to hear and decide the case on January 21 because a full hearing on the petition was not held by the statutory deadline. Respondent also argued that there was insufficient evidence to warrant issuance of a protection order. The district court found "no error with the Referee's Order" and affirmed the January 21, 2000 order for protection in its entirety.

At the court of appeals, Steven Burkstrand argued again that the district court⁴ lacked subject matter jurisdiction to conduct a hearing on January 21, because the statutory time frames for conducting a hearing on a petition for an order for protection had passed. Thus, he argued that the order for protection issued on that date was void ab initio. Linda Burkstrand responded that the court did not lose jurisdiction over the petition, and in the alternative, that her husband waived his right to object to the January 21 hearing as being untimely because his counsel requested the continuance because of his own illness and did not request that the matter be rescheduled within the statutory time period. The court of appeals concluded that the district court lacked subject matter jurisdiction and reversed. Burkstrand v. Burkstrand, No. C0-00-813, 2000 WL 1847671, at *2 (Minn.App. Dec.13, 2000).

In this appeal, appellant Linda Burkstrand argues that the district court retained jurisdiction to issue an order for protection despite the court's failure to adhere to the hearing time parameters of Minn.Stat. § 518B.01, subd. 7(c). She also contends that the 1995 amendments to Minn.Stat. § 518B.01 require interpretation and clarification. Finally, she again argues that respondent waived any right to object to the timeliness of the hearing.

The parties ask us to interpret the language of the Domestic Abuse Act and the effect of its 1995 amendments to determine whether the district court's failure to hold a hearing on appellant's petition within the statutory time frames divests the court of subject matter jurisdiction over the petition. We review issues of subject matter jurisdiction de novo. Handicraft Block Ltd. P'ship v. City of Minneapolis, 611 N.W.2d 16, 19 (Minn.2000). Statutory interpretation is also a question of law subject to de novo review. Hibbing Educ. Ass'n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985).

The Domestic Abuse Act provides a process whereby domestic abuse victims may petition for protection and relief. Minn.Stat. § 518B.01 (2000); State v. Errington, 310 N.W.2d 681, 682 (Minn.1981). A victim files a petition and supporting affidavit for an order for protection alleging the existence of domestic abuse and requesting specific types of relief. Minn.Stat. § 518B.01, subd. 4 (2000). If the petition "alleges an immediate and present danger of domestic abuse, the court may grant an ex parte order for protection * * *." Id., subd. 7(a).

In 1995, the legislature amended portions of subdivision 7 of the Act, which deals specifically with ex parte orders. Immediately before the 1995 amendments, subdivision 7(c) required:

an ex parte temporary order for protection shall be effective for a fixed period not to exceed 14 days, except for good cause as provided under paragraph (d). A full hearing, as provided by this section, shall be set for not later than seven days from the issuance of the temporary order. The respondent shall be served forthwith a copy of the ex parte order along with a copy of the petition and notice of the date set for the hearing.

Minn.Stat. § 518B.01, subd. 7(c) (1994). The 1995 amendments eliminated the 14-day time period for the effectiveness of an ex parte order for protection and eliminated the initial requirement that a hearing be held within 7 days of issuance of an ex parte order for protection. Act of May 10, 1995, ch. 142, § 5, 1995 Minn. Laws 402, 405. Since adoption of the 1995 amendments, subdivision 7(c) reads:

Subject to [certain service requirements], an ex parte order for protection shall be effective for a fixed period set by the court, [up to one year, except when the court determines that a longer period is appropriate], or until modified or vacated by the court pursuant to a hearing. Upon request, a full hearing, as provided by this section, shall be set for not later than seven days from the issuance of the ex parte order, if a hearing is requested by the petitioner, or not later than ten days or earlier than eight days from receipt by the court of a request for a hearing by the respondent.

Minn.Stat. § 518B.01, subd. 7(c) (2000) (emphasis added). This change to subdivision 7(c) allows for some ex parte orders to remain effective for a fixed period without a hearing. The 1995 legislature also amended subdivision 7 to explicitly require the petitioner who has obtained an ex parte order to request a hearing to be held within 7 days in cases where the petitioner asks for certain types of relief, including the temporary custody and monetary support requested here. Act of May 10, 1995, ch. 142, § 5, 1995 Minn. Laws 402, 405, codified at Minn.Stat. § 518B.01, subd. 7(e) (2000).⁵ The parties disagree as to the plain meaning of the statutory language as well as the legislative intent behind the 1995 amendments. The parties also dispute the role of Minn.Stat. § 518B.01, subdivision 5(a), which sets forth a 14-day hearing time frame on petitions for orders for protection when no ex parte order for protection has issued. Minn.Stat. § 518B.01, subd. 5(a) (2000).⁶

When interpreting statutes our goal "is to ascertain and effectuate the intention of the legislature." Minn.Stat. § 645.16 (2000). When the language of a statute is plain and unambiguous, it is assumed to manifest legislative intent and must be given effect. Tuma v. Comm'r of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986); see Minn.Stat. § 645.16. However, if a statute is ambiguous, we may ascertain the legislature's intent by considering a...