Whalen ex rel. Whalen v. Whalen

• Decision Date: 08 June 1999
• Docket Number: No. C9-98-1764,C9-98-1764
• Citation: 594 N.W.2d 277
• Parties: Jeffrey Jon WHALEN, on Behalf of Justin, Jacob, and Amanda WHALEN, Respondent, Nancy Murphy-Robinson, Respondent, v. Robin Eloise WHALEN, Appellant.
• Court: Minnesota Court of Appeals

Page 277

594 N.W.2d 277

Jeffrey Jon WHALEN, on Behalf of Justin, Jacob, and Amanda WHALEN, Respondent Nancy Murphy-Robinson, Respondent, v. Robin Eloise WHALEN, Appellant.

No. C9-98-1764.

Court of Appeals of Minnesota.

June 8, 1999.

Syllabus by the Court

1. An attorney representing a party in a dissolution proceeding is not required to represent that party in initiating a parallel domestic abuse proceeding.

2. An attorney representing a party in a domestic abuse proceeding need not provide notice of that proceeding beyond the notice required by the Domestic Abuse Act.

Brian K. Flakne, Flakne Law Offices, P.A., Minneapolis, for respondent Whalen.

Kathleen M. Picotte Newman, Larkin, Hoffman, Daly & Lindgren, Ltd., Bloomington, for respondent Murphy-Robinson.

Douglas J. Nill, Douglas J. Nill Law Office, Minneapolis, for appellant.

Steven A. Campbell, Steven A. Campbell Law Office, Brooklyn Center, guardian ad litem.

Considered and decided by ANDERSON, Presiding Judge, CRIPPEN, Judge, and AMUNDSON, Judge.

OPINION

G. BARRY ANDERSON, Judge

While being represented by respondent Nancy Murphy-Robinson in a proceeding to dissolve his marriage to appellant-mother Robin Whalen, respondent-father Jeffrey Whalen filed a pro se ex parte petition under the Domestic Abuse Act seeking an order for protection (OFP). The petition was initially granted but was later dismissed for procedural reasons. On the same day the first OFP was dismissed, father, again pro se, sought a second OFP against mother and her boyfriend. It too was dismissed for procedural reasons. Mother then moved in the second domestic abuse proceeding for attorney fees and sanctions against father and Murphy-Robinson. Mother's requests were denied and she now appeals, alleging the trial court erred by: (1) ruling that the requirements of Minn. R. Civ. P. 11 and 65.01, and Minn. R. Gen. Prac. 3.01 and 303.04 do not apply to father's petitions under the Domestic Abuse Act; (2) denying mother's request for an evidentiary hearing; and (3) denying mother's claim for costs and attorney fees pursuant to Minn.Stat. § 549.211 (1998) and Minn. R. Civ. P. 11. On appeal, Murphy-Robinson seeks both dismissal for lack of standing and attorney fees. Mother seeks attorney fees on appeal and asks that we strike certain portions of Murphy-Robinson's brief. We affirm the district court and deny the motions.

FACTS

In April 1998, during proceedings to dissolve his marriage to mother, father became concerned that his three children were being physically abused by mother's live-in boyfriend. Father contacted Murphy-Robinson, the attorney representing him in the dissolution, and described his concerns. Murphy-Robinson told him his concerns would best be addressed through the county domestic abuse office and provided father with the phone number for the office.

On April 23, 1998, father, acting pro se, petitioned for an order for protection (OFP) under the Domestic Abuse Act, Minn.Stat. § 518B.01, subd. 4 (Supp.1997). He filed the petition on behalf of his children against mother, alleging mother's boyfriend abused the children. The district court issued an ex parte OFP, set a hearing for April 30, 1998, and granted father temporary physical custody of the children.

Although Murphy-Robinson did not assist father in filing the ex parte petition, she represented him at the April 30, 1998 hearing. At that hearing, mother moved for dismissal of father's petition because it failed to allege she harmed her children. Mother also sought attorney fees from father under Minn.Stat. § 549.211 (Supp.1997). Because the petition lacked an allegation that mother abused the children, the referee dismissed it and took mother's request for fees under advisement.

Later on April 30, father went to a domestic abuse clinic for assistance in filing a second petition for an ex parte OFP. An order was issued the same day setting a hearing for May 7, 1998.

The district court vacated the second ex parte OFP, noting that (1) it impermissibly included two parties; (2) with respect to appellant, the petition lacked any information that was not available to the court at the April 30 hearing; and (3) the petition lacked an allegation that mother's boyfriend physically harmed the children or caused them to fear imminent harm. The district court ordered the immediate return of the children to mother. After dismissal of the second petition, Murphy-Robinson withdrew from representing father in the dissolution.

On May 7, 1998, mother moved for, among other things, (1) an order holding that, when parties to a dissolution are represented by counsel and become involved in a parallel domestic abuse proceeding, the notice and procedural requirements of Minn. R. Civ. P. 11 and 65.01, as well as Minn. R. Gen. Prac. 3.01 and 303.04 apply to domestic abuse petitions; (2) attorney fees under Minn.Stat. 549.211; (3) an evidentiary hearing to determine the propriety of a fee award under rule 11; and (4) reimbursement for day care paid for but not used and for wages lost as a result of the domestic abuse proceedings. Mother's request for attorney fees and sanctions against Murphy-Robinson was based on her claim that Murphy-Robinson violated provisions of the Domestic Abuse Act by not verifying and signing the pleadings prepared by father and by failing to give notice that father intended to seek an OFP. The district court denied all of the motions, stating:

[Father] attempted to follow the rules with the assistance of the Domestic Abuse Office and [the clinic]. He did nothing wrong by following the advice of his attorney and going to the Domestic Abuse Office for assistance. [Murphy-Robinson] did nothing wrong by advising him to go there. She was under no obligation to notify opposing counsel of the petition or the allegations. She followed the statutes and the rules as they are written. [Father's] allegations are not frivolous, in fact they are very serious, and the most unfortunate thing about this entire case is that the petitions were dismissed on procedural grounds before ever being heard on the merits.

Mother appeals. On appeal, Murphy-Robinson filed a brief but father did not.

ISSUES

I. Should this court strike portions of Murphy-Robinson's brief?

II. If a party represented by counsel in a dissolution proceeding later seeks an order for protection under the Domestic Abuse Act, does Minn. R. Civ. P. 11 require dissolution counsel to represent the client in the domestic abuse proceeding?

III. Did the district court err in its interpretation of the notice requirements for domestic abuse proceedings?

IV. Did the district court err by denying mother an evidentiary hearing on her motion for attorney fees?

V. Did the district court abuse its discretion in denying mother an award of costs and attorney fees from father and Murphy-Robinson?

VI. Is either mother or Murphy-Robinson entitled to attorney fees on appeal?

ANALYSIS

I.

Mother moves this court to strike an affidavit from the appendix to Murphy- Robinson's brief and certain arguments that Murphy-Robinson raises in her brief. The affidavit was filed in district court and is a part of the record on appeal. See Minn. R. Civ.App. P. 110.01 (appellate record includes papers filed in district court, exhibits, and transcript). The motion is without merit and is therefore denied. Additionally, we note the arguments at issue in Murphy-Robinson's brief are not involved in our decision and mother's motion is therefore irrelevant.

II.

Mother challenges the district court's refusal to hold that Minn. R. Civ. P. 11 requires an attorney who is representing a client in a dissolution to also represent that client in a parallel domestic abuse proceeding when the client, while the dissolution proceeding is pending, seeks an OFP under the Domestic Abuse Act. We review this issue de novo. See Wilkins v. City of Glencoe, 479 N.W.2d 430, 431 (Minn.App.1992) (holding interpretation of rules of civil procedure is a legal question reviewed de novo on appeal). Rule 11 requires various certifications to be made on pleadings "of a party represented by an attorney." The rule includes no requirement either that a party be represented by an attorney in a parallel proceeding or that a party be represented by an attorney at all. Therefore, we cannot say rule 11 requires dissolution counsel to represent a party in a subsequent, parallel domestic abuse proceeding. Indeed, the Domestic Abuse Act contemplates both the filing of petitions while other proceedings involving the parties are pending and that domestic abuse petitions will be filed by persons not represented by counsel. See Minn.Stat. 518B.01, subds. 4(d), (e) (Supp.1997) ((d) "[t]he court may not delay granting relief because of the existence of a pending action between the parties"; (e) requiring court to "provide simplified forms and clerical assistance to help with the writing and filing of a [domestic abuse petition]"). Also, requiring a party to locate and go through dissolution counsel could impede the purpose of the Domestic Abuse Act, which is to allow immediate judicial action, when necessary. See, e.g., Baker v. Baker, 494 N.W.2d 282, 286 (Minn.1992) (explaining that, if notice were required for ex parte restraining order under Domestic Abuse Act, the order would not provide the immediate remedy that the act contemplates). We decline to hold that rule 11 imposes a requirement for domestic abuse proceedings that is not mentioned by rule and that could be contrary to the purpose of the Domestic Abuse Act.

III.

Mother alleges the notice requirements of Minn. R. Civ. P. 65.01 and Minn. R. Gen. Pract. 3.01 and 303.04 should apply to ex parte applications for OFPs under the Domestic Abuse Act. Initially, we note the Domestic Abuse Act has its own statutory notice procedures. Second, the supreme court has stated:

[I]t is irrelevant whether the [domestic abuse] statute provides for separate, explicit procedures tailored for the...