Minnesota General Rules of Practice for the District Courts
Includes amendments effective January 1, 2006
Provided by the Minnesota Supreme Court Commissioners Office
 
TITLE IV.  RULES OF FAMILY COURT PROCEDURE
 
PART A.  PROCEEDINGS, MOTIONS, AND ORDERS
 
Rule 301.             Applicability of Rules
Rule 302.             Commencement; Continuance; Time; Parties
302.01   Commencement of Proceedings
302.02   Continuances
302.03   Time
302.04   Designation of Parties
Rule 303.             Motions; Ex Parte Relief; Orders to Show Cause; Orders and Decrees
303.01   Scheduling of Motions
303.02   Form of Motion
303.03   Motion Practice
303.04   Ex Parte Relief
303.05   Orders to Show Cause
303.06   Order and Decrees Requiring Child Support or Maintenance
Rule 304.             Scheduling of Cases
304.01   Scope
304.02   The Party’s Informational Statement
304.03   Scheduling Order
304.04   Amendment
Rule 305.             Prehearing Conferences
305.01   Prehearing Statement
305.02   Prehearing Conference Attendance
305.03   Prehearing Conference Order
Rule 306.             Default
306.01   Scheduling of Final Hearing
306.02   Preparation of Decree
Rule 307.             Final Hearings
Rule 308.             Final Decree
308.01   Notices; Service
308.02   Statutorily Required Notice
308.03   Sensitive Matters
Rule 309.             Contempt
309.01   Initiation
309.02   Hearing
309.03   Sentencing
Rule 310.             Alternative Dispute Resolution
310.01   Applicability
310.02   Post-Decree Matters
310.03-.9              [Deleted effective July 1, 1997]
Rule 311.             Forms
Rule 312.             Review of Referee’s Findings or Recommendations
312.01   Notice of Assignment to Judge; Parties’ Submissions
312.02   Transcript of Referee’s Hearing
Rule 313              Confidential Numbers and Tax Returns
 
PART B.  EXPEDITED CHILD SUPPORT PROCESS
 
1.            GENERAL RULES
Rule 351.             Scope; Purpose

351.01      Scope

351.02      Purpose and Goals of Expedited Child Support Process

Rule 352.             Definitions
352.01   Definitions
Rule 353.             Types of Proceedings

353.01      Types of Proceedings

353.02      Procedure When Prohibited Issues

Rule 354.             Computation of Time

354.01      Generally

354.02      Time Periods Less Than Seven Days

354.03      “Business Day” Defined

354.04      Additional Time if Service by Mail or Service Late in Day

Rule 355.             Methods of Service

355.01      Generally

355.02      Types of Service

355.03      Completion of Service

355.04      Proof of Service

Rule 356.             Fees

356.01      Collection of Fees

356.02      Waiver of Fee

Rule 357.             Legal Representation and Appointment of Guardian Ad Litem

357.01      Right to Representation

357.02      Certificate of Representation

357.03      Appointment of Attorney at Public Expense

357.04      Appointment of Guardian Ad Litem

Rule 358.             Court Interpreters

358.01      Appointment Mandatory

358.02      “Person Handicapped in Communication” Defined        

Rule 359.             Telephone and Interactive Video

359.01      Telephone and Interactive Video Permitted

359.02      Procedure

359.03      In-Court Appearance Not Precluded

Rule 360.             Intervention

360.01      County Agency

360.02      Other Individuals

360.03      Effect of Intervention

Rule 361.             Discovery

361.01      Witnesses

361.02      Exchange of Documents

361.03      Other Discovery

361.04      Discovery Remedies

361.05      Filing of Discovery Requests and Responses Precluded

361.06      Subpoenas

Rule 362.             Settlement

362.01      Procedure

362.02      Signing of Order

362.03      Order Accepted

362.04      Order Not Accepted

Rule 363.             Default

363.01      Scope

363.02      Procedure

363.03      Order Accepted

363.04      Order Not Accepted

Rule 364.             Hearing Process

364.01      Right to Hearing

364.02      Scheduling of Hearing

364.03      Timing of Hearing

364.04      Notice of Hearing

364.05      Continuance of Hearing   

364.06      Explanation of Hearing Purpose and Procedure

364.07      Hearings Open to Public

364.08      Record of Hearing

364.09      Right to Present Evidence

364.10      Evidence

364.11      Burden of Proof

364.12      Examination of Adverse Party

364.13      Role of Child Support Magistrate

364.14      Discretion to Leave Record Open

364.15      Close of Record

Rule 365.             Decision and Order of Child Support Magistrate

365.01      Failure to Attend Hearing

365.02      Timing       

365.03      Effective Date; Final Order

365.04      Notice of Filing of Order or Notice of Entry of Judgment

Rule 366.             Transcript

366.01      Ordering of Transcript

Rule 367.             Administration of Expedited Child Support Process; Child Support Magistrates

367.01      Administration of Expedited Process      

367.02      Use and Appointment of Child Support Magistrates       

367.03      Powers and Authorities

367.04      Conflict of Interest

367.05      Code of Judicial Conduct

367.06      Impartiality

Rule 368.             Removal of a Particular Child Support Magistrate

368.01      Automatic Right to Remove Precluded

368.02      Removal for Cause

Rule 369.             Role of County Attorney and Employees of the County Agency

369.01      Role of County Attorney

369.02      Role of Employees of County Agency

 
2.  PROCEEDINGS
Rule 370.             Establishment of Support Proceedings

370.01      Commencement

370.02      Content of Summons, Complaint, Supporting Affidavit, and Request for Hearing

                 Form

370.03      Service of Summons and Complaint

370.04      Filing Requirements

370.05      Response

370.06      Amended Pleadings

370.07      Fees

370.08      Settlement Procedure       

370.09      Default Procedure

370.10      Hearing Procedure

370.11      Decision and Order

370.12      Review and Appeal

Rule 371.             Parentage Actions

371.01      Commencement

371.02      Content of Summons, Complaint, and Supporting Affidavit      

371.03      Service of Summons and Complaint

371.04      Filing Requirements

371.05      Response

371.06      Blood and Genetic Testing Requested Before Hearing

371.07      Amended Pleadings

371.08      Fees

371.09      Settlement Procedure

371.10      Hearing Procedure

371.11      Procedure When Blood or Genetic Testing Requested

371.12      Procedure When Written Answer Filed

371.13      Procedure When Written Answer Not Filed

371.14      Decision and Order

371.15      Review and Appeal

Rule 372.             Motions to Modify, Motions to Set Support, and Other Matters

372.01      Commencement

372.02      Content of Notice of Motion, Motion, Supporting Affidavit, and Request for Hearing

                 Form         

372.03      Service of Notice of Motion and Motion

372.04      Filing Requirements

372.05      Response

372.06      Amended Motions

372.07      Fees

372.08      Settlement Procedure

372.09      Default Procedure

372.10      Hearing Procedure

372.11      Decision and Order

372.12      Review and Appeal

Rule 373.             Enforcement Proceedings

373.01      Types of Proceedings

373.02      Commencement

Rule 374.             Civil Contempt

374.01      Initiation

374.02      Resolution of Contempt Matter

374.03      Evidentiary Hearing

374.04      Failure to Appear

 
3.  REVIEW AND APPEAL
Rule 375.             Motion to Correct Clerical Mistakes

375.01      Initiation

375.02      Procedure

375.03      Decision

375.04      Combined Motions

Rule 376.             Motion for Review

376.01      Initiation

376.02      Procedure

376.03      Decision

Rule 377.             Procedure on a Motion to Correct Clerical Mistakes, Motion for Review, or Combined Motion

377.01      Other Motions Precluded

377.02      Timing of Motion

377.03      Content of Motion

377.04      Response to Motion

377.05      Calculation of Time

377.06      Review When Multiple Motions Filed – Motion for Review      

377.07      Notice of Assignment of District Court Judge – Motion for Review      

377.08      Decision and Order Not Stayed

377.09      Basis of Decision and Order

377.10      Notice of Order or Judgment       

377.11      Effective Date; Final Order

Rule 378.             Appeal to Court of Appeals

378.01      Generally

 
4.  FORMS
Rule 379.             Forms
379.01   Court Administrator to Provide Forms
379.02   Substantial Compliance
379.03   Modification of Forms
379.04   Acknowledgment
379.05   Exception from Rules Governing Civil Actions
 
APPENDIX OF FORMS
 
PART A.  PROCEEDINGS, MOTIONS, AND ORDERS
 
RULE 301.  APPLICABILITY OF RULES
 
               Rules 301 through 313 apply to all proceedings in Family Court.  These rules and, where applicable, the Minnesota Rules of Civil Procedure shall apply to family law practice except where they are in conflict with applicable statutes.
 
               (Amended effective March 1, 2001.)
 
Advisory Committee Comment--1992 Amendments
 
                   These rules are derived primarily from the Rules of Family Court Procedure.  The advisory committee comments from the Rules of Family Court Procedure are included except where inconsistent with new provisions or where applicable rules are not retained.  
                   These rules apply to the following specific types of proceedings that are generally treated as family court actions: 
                   1.            Marriage dissolution, legal separation, and annulment proceedings (Minnesota Statutes, chapter 518); 
                   2.            Child custody enforcement proceedings (Minnesota Statutes, chapter 518A); 
                   3.            Domestic abuse proceedings (Minnesota Statutes, chapter 518B); 
                   4.            Support enforcement proceedings (Minnesota Statutes, chapter 518C--R.U.R.E.S.A.); 
                   5.            Contempt actions in Family Court (Minnesota Statutes, chapter 588); 
                   6.            Parentage determination proceedings (Minnesota Statutes, sections 257.51-.74); 
                   7.            Actions for reimbursement of public assistance (Minnesota Statutes, section 256.87); 
                   8.            Withholding of refunds from support debtors (Minnesota Statutes, section 289A.50, subdivision 5); 
                   9.            Proceedings to compel payment of child support (Minnesota Statutes, section 393.07, subdivision 9); and 
                   10.          Proceedings for support, maintenance or county reimbursement judgments (Minnesota Statutes, section 548.091). 
                   Other matters may be heard and treated as family court matters.  (Amended effective January 1, 1993.)

 

 
RULE 302.  COMMENCEMENT; CONTINUANCE; TIME; PARTIES
 
Rule 302.01 Commencement of Proceedings 
 
               (a)          Service.  Marriage dissolution, legal separation and annulment proceedings shall be commenced by service of a summons and petition upon the person of the other party, by alternate means authorized by statute, or by publication pursuant to court order.  Service in other family court proceedings shall be governed by the rules of civil procedure. 
(b)                    Joint Petition.  
                               (1)          No summons shall be required if a joint petition is filed.  Proceedings shall be deemed commenced when both parties have signed the verified petition. 
                               (2)          Where the parties to a proceeding agree on all property issues, have no children together, the wife is not pregnant, and the wife has not give birth since the date of the marriage to a child who is not a child of the husband, the parties may proceed using a joint petition, agreement, and judgment and decree for marriage dissolution without children.  Form 12 appended to these rules is a sufficient form for this purpose.

                   (3)            Upon filing of the “Joint Petition, Agreement and Judgment and Decree,” and Form 11.1 appended to Title I of these rules, and a Notice to the Public Authority if required by Minn. Stat. § 518.551, subd. 5, the court administrator shall place the matter on the default calendar for approval without hearing pursuant to Minn. Stat. § 518.13, subd. 5.  A Certificate of Representation and Parties and documents required by Rules 306.01and 306.02 shall not be required if the “Joint Petition, Agreement and Judgment and Decree” provided in Form 12 is used.

                   (4)            Court Administrators in each Judicial District shall make the “Joint Petition, Agreement and Judgment and Decree for Marriage Dissolution Without Children” available to the public at a reasonable cost, as a fill-in-the-blank form.

 
               (c)          Service by Alternate Means or Publication.  Service of the summons and petition may be made by alternate means as authorized by statute.  Service of the summons and petition may be made by publication only upon an order of the court.  If the respondent subsequently is located and has not been served personally or by alternate means, personal service shall be made before the final hearing.
 
               (Amended effective January 1, 2006.)
 
 
Family Court Rules Advisory Committee Commentary*
 
                   Proceedings for dissolution, legal separation and annulment are governed by Minnesota Statutes, chapter 518.  Minnesota Statutes, section 518.10 sets out the requisites for the petition.  Minnesota Statutes, section 518.11 governs service by publication and precludes substitute service or service by mail under Minn. R. Civ. P. 4.05.  The respondent’s answer must be served within 30 days.  Minnesota Statutes, section 518.12.  The joint proceeding is commenced on the date when both parties have signed the petition; no summons is required.  Minnesota Statutes, sections 518.09 & 518.11.  In cases involving foreign nationals, see Part I, Rule 30, Code of Rules for District Court.
                   Custody proceedings under the Uniform Child Custody Jurisdiction Act are governed by Minnesota Statutes, chapter 518A.  Interstate service and notice must be accomplished at least 20 days prior to any hearing in Minnesota.  Service within the state is set forth in Minn. R. Civ. P. 4. Domestic abuse proceedings are governed by Minnesota Statutes, chapter 518B.  Ex parte orders for protection must include notice of a hearing within 14 days of the issuance of the order.  Personal service upon the respondent must be effected not less than five days prior to the first hearing. 
                   Support proceedings under the revised Uniform Reciprocal Enforcement of Support Act are governed by Minnesota Statutes, chapter 518C.  The time for answer is governed by the law of the responding jurisdiction. 
                   Actions to establish parentage are governed by Minnesota Statutes, chapter 257.  Actions for reimbursement for public assistance are governed by Minnesota Statutes, section 256.87.  Defendant has 20 days to answer the complaint in each action. 
                   The Petitioner must notify the public agency responsible for support enforcement of all proceedings if either party is receiving or has applied for public assistance.  Minnesota Statutes, section 518.551. 
                   A party appearing pro se shall perform the acts required by rule or statute in the same manner as an attorney representing a party.  An attorney dealing with a party pro se shall proceed in the same manner, including service of process, as in dealing with an attorney. 
 
                   *Original Advisory Committee Comment--Not kept current.
 
Task Force Comment--1991 Adoption
 
                   Subsection (a) is derived from Rule 1.01 of the Rules of Family Court Procedure. 
                   Subsection (b) is derived from Second District Local Rule 1.011. 
                   Subsection (c) is derived from Second District Local Rule 1.013.  See Minnesota Statutes, section 518.11 (1990).  This is to protect the children and help avoid secret proceedings if the respondent is able to be located.
 

Advisory Committee Comment—2003 Amendments

 

Subsections (2), (3), and (4), and Form 12, are new in 2003 and were recommended for adoption by the Minnesota State Bar Association’s Pro Se Implementation Committee.

Subsections (2) and (3) of Rule 302.01(b) intended to provide a streamlined process for marriage dissolutions without children, where the parties agree on all property issues. These rule provisions essentially create a new process, commenced with a combined petition, stipulation and judgment and decree. Although intended to facilitate handling of cases by parties appearing without an attorney, it is available to represented parties as well. A new form is provided and should be made readily available to litigants. If either party to the proceedings is receiving public assistance, a Notice to Public Authority is also required. The Joint Petition, Agreement, and Judgment and Decree includes a statement regarding non-military status and a pro se waiver of right to be represented by a lawyer, thus satisfying the requirements of Rule 306.01(c).  Court Administrators shall place the matter on the default calendar for final hearing without filing of Form 10 appended to the Rules.  The Joint Petition, Agreement and Judgment and Decree may be used by parties represented by attorneys or parties representing themselves. The committee believes that the Joint Petition, Agreement, and Judgment and Decree procedure will reduce costs for litigants, reduce paper handling and storage expenses for the courts, and improve access to the courts.

Attorneys should approach the use of a Joint Petition with care.  The amendment of this rule to allow use of a joint petition does not modify the professional liability constraints on joint representation of parties with divergent interests.

As part of this amendment, Rule 306.01 is also amended for internal consistency.

 

Advisory Committee Comment—2006 Amendment

 

Rule 302 is amended to incorporate procedures to deal with service “by alternate means” as authorized by statute.  Minn. Stat. § 518.11 expressly provides authority for service by various other means.  The rule retains provision for service by publication as well, because publication is authorized for a summons and petition that may affect title to real property.  See  Minn. Stat. § 518.11(c) (2004).

 

 
Rule 302.02 Continuances
 
               Minn. Gen. R. Prac. 122 shall be followed in connection with continuances for pre‑hearings and trial settings.  No continuance of a motion shall be granted unless requested within 3 days of receiving notice under Rule 303.01(a) and unless good cause is shown.
 
Rule 302.03 Time
 
               Time is governed by Minnesota Rules of Civil Procedure, except where a different time is specified by statute.  Procedural time limits may be shortened for good cause shown.
 
Family Court Rules Advisory Committee Commentary*
 
                   Family Court proceedings involve human considerations which may require expeditious judicial attention.  The shortening of time should be the exception and not the rule.  A motion to shorten time will be granted only upon demonstration of the unusual circumstances justifying this extraordinary relief.  See Rule 2.05.
 
                   *Original Advisory Committee Comment--Not kept current.
 
Task Force Comment--1991 Adoption
 
                   This rule is derived from existing Rule 1.04 of the Rules of Family Court Procedure.
 
Rule 302.04 Designation of Parties 
 
               (a)          Petitioner and Respondent.  Parties to dissolution, legal separation, annulment, custody, domestic abuse, U.C.C.J.A., and R.U.R.E.S.A. proceedings shall be designated as petitioner (joint petitioners) and respondent.  Parties to parentage and Minnesota Statutes, section 256.87 reimbursement actions shall be designated as plaintiff and defendant.  After so designating the parties, it is permissible to refer to them as husband and wife by inserting the following in any petition, order, decree, etc.: 
 
Petitioner is hereinafter referred to as (wife/husband), and respondent as (husband/wife). 
 
               (b)          Guardians.  Appointment of a guardian ad litem is governed by Minn. Gen. R. Prac. 108.  A guardian ad litem for minor children may be designated a party to the proceedings in the order of appointment.
 
Family Court Rules Advisory Committee Commentary *
 
                   A guardian appointed pursuant to Minnesota Statutes, section 257.60 becomes a party to the action if the child is made a party.  The guardian then would be entitled to initiate and respond to motions, conduct discovery, call and cross-examine witnesses, make oral or written arguments or reports and appeal on behalf of a child without the necessity of applying to the court. 
                   A guardian appointed under Minnesota Statutes, section 518.165 is not a party to the proceeding and may only initiate and respond to motions and make oral statements and written reports on behalf of the child. 
                   A party has the right to cross-examine as an adverse witness the author of any report or recommendation on custody and visitation of a minor child.  Thompson v. Thompson, 288 Minn. 41, 55 N.W. 329 (1952) and Scheibe v. Scheibe, 308 Minn. 449, 241 N.W.2d 100 (1976). 
                   Practice among the courts may vary with respect to appointments.  Some courts maintain panels of lay guardians while other courts maintain panels of attorney guardians.  If a lay guardian is appointed, an attorney for the guardian may also be appointed.  Guardians may volunteer or be paid for their services.  An attorney requesting appointment of a guardian should inquire into local practice. 
 
                   *Original Advisory Committee Comment--Not kept current.
 
Task Force Comment--1991 Adoption
 
                   Subdivision (a) of this rule is derived from existing Second District R. 1.07. 
                   Subdivision (b) of this rule is derived from Rule 1.02 of the Uniform Rules of Family Court Procedure.  The first sentence of the subdivision is new and is intended to make it clear that practice involving guardians ad litem is also governed by another rule provision.

 

 
RULE 303.  MOTIONS; EX PARTE RELIEF; ORDERS TO SHOW CAUSE; ORDERS AND DECREES
 
Rule 303.01 Scheduling of Motions 
 
               (a)          Notice. 
               (1)          All motions shall be accompanied by either an order to show cause or by a notice of motion which shall state, with particularity, the time and place of the hearing and the name of the judge, referee, or judicial officer, as assigned by the local assignment clerk. 
               (2)          Except in cases in which the parties reside in the same residence and there is a possibility of abuse, a party who obtains a date and time for hearing a motion shall promptly give notice of the hearing date and time and the name of the judge or referee, if known, to all other parties in the action.  If the parties reside in the same residence and there is a possibility of abuse, notice shall be given in accordance with the Minnesota Rules of Civil Procedure. 
               (b)          Notice of Time to Respond.  All motions and orders to show cause shall contain the following statement: 
 
   All responsive pleadings shall be served and mailed to or filed with the court administrator no later than five days prior to the scheduled hearing.  The court may, in its discretion, disregard any responsive pleadings served or filed with the court administrator less than five days prior to such hearing in ruling on the motion or matter in question.
 
Family Court Rules Advisory Committee Commentary*
 
                   The scheduling of cases and the assignment of judges, judicial officers or referees is often a situation in which local calendaring practices prevail.  Effective disposition of litigation requires immediate notice of the hearing officer’s identity to preclude last minute filing of notices to remove or affidavits of prejudice. 
 
                   *Original Advisory Committee Comment--Not kept current.
 
Task Force Comment--1991 Adoption
 
                   Subdivision (a)(1) of this rule is derived from existing Rule 2.01 of the Rules of Family Court Procedure. 
                   Subdivision (a)(2) is from the new Minn. Gen. R. Prac. 115.02.  It is intended primarily to prevent a party from obtaining a hearing date and time weeks in advance of a hearing but then delaying giving notice until shortly before the hearing.  This practice appears to give an unnecessary tactical advantage to one side.  Additionally, by requiring that more than the minimum notice be given in many cases, it will be possible for the responding parties to set on for hearing any additional motions they may have.  This may result in the more efficient hearing of multiple motions on a single hearing date. 
                   Subdivision (b) of this rule is derived from Second Judicial District Rule 2.011.
 
Rule 303.02 Form of Motion 
 
               (a)          Specificity and Supporting Documents.  Motions shall set out with particularity the relief requested in individually numbered paragraphs.  All motions must be supported by appropriate affidavits, relevant and material to the issues before the court.  The paragraphs of the affidavits should be specific and factual; where possible, they should be numbered to correspond to the paragraphs of the motion. 
               (b)          Application for Temporary Relief.  When temporary financial relief is initially requested, such as child support, maintenance and attorney's fees, the application for temporary relief form set forth at form 1 appended to these rules shall be served and filed by the moving and responding parties.  Additional facts, limited to relevant and material matters, shall be added at paragraph 10 of the application form or by supplemental affidavit.  Sanctions for failure to comply include, but are not limited to, the striking of pleadings or hearing.
 
Task Force Comment--1991 Adoption
 
                   Subdivision (a) of this rule is derived from existing Rule 2.02 of Rules of Family Court Procedure. 
                   Subdivision (b) of this rule is derived from Second Judicial District Rule 2.021. 
                   The local rule from which subdivision (b) is derived included a requirement that information be filed on forms, and that typewritten or word-processed documents would not be accepted for filing.  The Task Force considered the desirability of requiring information to be submitted on pre-printed forms, and determined that such requirements should not be retained.  Many modern law offices cannot readily prepare such documents as word processing machines have displaced the typewriters for which the forms are designed.  The Task Force also believes that these requirements only increase the cost of litigation and limit access to the courts.
 
Rule 303.03 Motion Practice 
 
               (a)          Requirements for Motions. 
               (1)          Moving Party, supporting documents, time limits.  No motion shall be heard unless the initial moving party pays any required motion filing fee, serves a copy of the following documents on opposing counsel and files the original with the court administrator at least 14 days prior to the hearing: 
                               (i)           Notice of motion in form required by Minn. Gen. R. Prac. 303.01(a); 
                               (ii)          Motion; 
                               (iii)          Any relevant affidavits and exhibits; and 
                               (iv) Any memorandum of law the party intends to submit. 
               (2)          Motion Raising New Issues.  A responding party raising new issues other than those raised in the initial motion shall pay any required motion filing fee, serve a copy of the following documents on opposing counsel and file the original with the court administrator at least 10 days prior to the hearing: 
                               (i)           Notice of motion in form required by Minn. Gen. R. Prac. 303.01(a); 
                               (ii)          Motion; 
                               (iii)          Any relevant affidavits and exhibits; and 
                               (iv) Any memorandum of law the party intends to submit. 
               (3)          Responding party, supporting documents, time limits.  The party responding to issues raised in the initial motion, or the party responding to a motion which raises new issues, shall pay any required motion filing fee, serve a copy of the following documents on opposing counsel and file the original with the court administrator at least five days prior to the hearing, inclusive of Saturdays, Sundays, and holidays: 
                               (i)           Any memorandum of law the party intends to submit 
                               (ii)          Any relevant affidavits and exhibits. 
               (4)          Computation of Time for Service and Filing By Mail.  Whenever this rule requires documents to be filed with the court administrator within a prescribed period of time before a specific event, filing may be accomplished by mail, subject to the following: (i) 3 days shall be added to the prescribed period; and (ii) filing shall not be considered timely unless the documents are deposited in the mail within the prescribed period.  Service of documents on parties by mail is subject to the provisions of Minn. Civ. R. P. 5.02 and 6.05. 
               (5)          Post-Trial Motions.  The timing provisions of Section 303.03(a) do not apply to post-trial motions. 
               (b)          Failure to Comply.  In the event an initial moving party fails to timely serve and file documents required in this rule, the hearing may be canceled by the court.  If responsive papers are not properly served and filed, the court may deem the initial motion or motion raising new issues unopposed and may issue an order without hearing.  The court, in its discretion, may refuse to permit oral argument by the party not filing the required documents, may consider the matter unopposed, may allow reasonable attorney’s fees, or may take other appropriate action.
               (c)          Settlement Efforts.  No motion, except motion for temporary relief, will be heard unless the parties have conferred either in person, or by telephone, or in writing in an attempt to resolve their differences prior to the hearing.  The moving party shall initiate such conference.  In matters involving post-decree motions, if the parties are unable to resolve their differences in this conference they shall consider the use of an appropriate ADR process under Rule 114 to attempt to accomplish resolution.  The moving party shall certify to the court, before the time of the hearing, compliance with this rule or any reasons for not complying, including lack of availability or cooperation of opposing counsel.  Whenever any pending motion is settled, the moving party shall promptly advise the court. 
               (d)          Motion with Request for Oral Testimony.  Motions, except for contempt proceedings, shall be submitted on affidavits, exhibits, documents subpoenaed to the hearing, memoranda, and arguments of counsel unless otherwise ordered by the court for good cause shown.  If demand is made for the taking of oral testimony, and if the matter cannot be heard adequately in the scheduled time, the hearing shall be utilized as a prehearing conference.  Requests for hearing time in excess of one-half hour shall be submitted by written motion specifically setting forth the necessity and reason that evidence cannot be submitted by affidavit.  The motion shall include names of witnesses, nature and length of testimony, including cross-examination, and types of exhibits, if any.  The court may issue an order limiting the number of witnesses each party may call, the scope of their testimony, and the total time for each party to present evidence.  Such an order shall be made only after the lawyer for each party has had an opportunity to suggest appropriate limits.  Any motion relating to custody or visitation shall additionally state whether either party desires the court to interview minor children.  No child under the age of fourteen years will be allowed to testify without prior written notice to the other party and court approval.  
 
               (Amended effective January 1, 2004.)
 
Family Court Rules Advisory Committee Commentary*
 
                   Minnesota Statutes, section 518.131, subdivision 8 grants a party the right to present oral testimony upon the filing of a demand either in the initial application for temporary relief or in the response thereto. 
                   The party demanding oral testimony should provide a list of the proposed witnesses, the scope of their testimony and an estimate of the required time. 
 
                   *Original Advisory Committee Comment--Not kept current.
 
Advisory Committee Comment--1996 Amendment
 
                   Subdivisions (a)-(d) of this rule are new.  They are derived from parallel provisions in new Minn. Gen. R. Prac. 115, and are intended to make motion practice in family court matters as similar to that in other civil actions as is possible and practical given the particular needs in family court matters. 
                   Subdivision (d) of this rule is derived from Rule 2.04 of Rules of Family Court Procedure and from Second Judicial District Rules 2.041 and 2.042. 
                   The requirement in subsection (c) of an attempt to resolve motion disputes requires that the efforts to resolve the matter be made before the hearing, not before bringing the motion.  It is permissible under the rule to bring a motion and then attempt to resolve the motion.  If the motion is resolved, subsection (c) requires the parties to advise the court immediately. 
                   Rule 303.03(a)(5) is added by amendment to be effective January 1, 1994, in order to make it clear that the stringent timing requirements of the rule need not be followed on post-trial motions.  This change is made to continue the uniformity in motion practice between family court matters and general civil cases, and is patterned on the change to Minn. Gen. R. Prac. 115.01(c) made effective January 1, 1993. 
                   Subdivision (c) of this rule is amended in 1996 to require consideration of ADR in post-decree matters.  The rule specifies how ADR proceedings are commenced in post-decree matters; the procedures for court-annexed ADR in these matters is generally the same under Rule 114 as for other cases.  
 

 

Advisory Committee Comment—2003 Amendments

 

The rule is amended in 2003 to include a reference to the requirement for paying a motion filing fee.  A new statute in 2003 imposes a fee for “filing a motion or response to a motion in civil, family, excluding child support, and guardianship case.”  See 2003 Minn. Laws 1st Spec. Sess., ch. 2, art. 2, § 2, to be codified at Minn. Stat. § 357.021, subd. 2(4).

 

 
 
Rule 303.04 Ex parte Relief 
 
               (a)          Motion.  The court may grant ex parte relief only if requested by a motion with supporting affidavit, properly executed. 
               (b)          Order to Show Cause.  An order to show cause shall not be used to grant ex parte relief except in those cases where permitted pursuant to Minn. Gen. R. Prac. 303.05. 
               (c)          Filing.  All such orders and supporting documents must be filed with the order appropriately signed out for personal service.  A conformed file copy of such order shall be retained by the court administrator in the file. 
               (d)          Interim Support Order.  To insure support for an unemployed party or a party with children pending a full temporary hearing, an initial order to show cause may, if the situation warrants, contain the following: 
 
                   IT IS FURTHER ORDERED that pending the aforesaid scheduled hearing, you, shall pay to the (petitioner) (respondent) commencing forthwith _______ percent of your net earnings after the usual deductions for FICA, withholding taxes and group insurance, such payments to be made within 24 hours of your receipt of such earnings for each pay period.  These payments are to insure that provision is made by you for the support of your (wife) (husband) (and) (children) pending the aforesaid hearing. 
 
               The percentage to be used will be in accordance with the statutory child support guidelines and such other factors related to maintenance as the court deems appropriate. 
 
               There must be a showing in the Application for Temporary Relief or separate affidavit of the necessity for the interim order for support.
 
Family Court Rules Advisory Committee Commentary*
 
                   Minn. R. Civ. P. 65.01 states the notice requirements for ex parte relief.  Minnesota Statutes, section 518.131 controls ex parte temporary restraining orders. 
 
                   *Original Advisory Committee Comment--Not kept current.
 
Task Force Comment--1991 Adoption
   
                   Subdivisions (a), (b) and (c) of this rule are derived from existing Rule 2.05 of the Rules of Family Court Procedure. 
                   Subdivision (d) of this rule is derived from Second District Local Rule 2.051. 
                   Parties should be aware that Minn. Gen. R. Prac. 3 applies to all ex parte orders, including those relating to family court proceedings.  Minn. R. Civ. P. 65.01 also applies in family court temporary restraining order practice.
 
Rule 303.05 Orders to Show Cause 
 
               Orders to show cause shall be obtained in the same manner specified for ex-parte relief.  Such orders may require production of limited financial information deemed necessary by the court.  An order to show cause shall be issued only where the motion seeks a finding of contempt or the supporting affidavit makes an affirmative showing of: 
               (a)          a need to require the party to appear in person at the hearing, or 
               (b)          the need for interim support is warranted, or 
               (c)          the production of limited financial information deemed necessary by the court, or 
               (d)          such other limited relief and appropriate restraining orders, as addressed individually in the separate supportive affidavit for ex-parte relief.
 
Family Court Rules Advisory Committee Commentary*
 
                   The use of orders to show cause can be abused by requiring a  personal appearance where none is necessary.  A timely notice of motion informing a party of the time to appear, if he or she wishes, is adequate in most proceedings. 
 
                   *Original Advisory Committee Comment--Not kept current.
 
Task Force Comment--1991 Adoption
   
   This rule is derived from existing Rule 2.06 of the Rules of Family Court Procedure.  The Family Law Section of the Minnesota State Bar Association recommended additional specific language limiting use of orders to show cause and the Task Force agrees that this clarification should be useful.  Orders to show cause are specifically authorized, in limited circumstances, by statute.  See, e.g., Minnesota Statutes, sections 256.87, subdivision 1a and 393.07, subdivision 9 (1990).
 
Rule 303.06 Orders and Decrees Requiring Child Support or Maintenance 
 
               All orders and judgments and decrees which include awards of child support and/or maintenance, unless otherwise directed by the court, shall include the following provisions: 
               That both parties are hereby notified that: 
               (a)          Payment of support or maintenance, or both, is to be as ordered herein, and the giving of gifts or making purchases of food, clothing and the like will not fulfill the obligation. 
               (b)          Payment of support must be made as it becomes due, and failure to secure, or denial of rights of, visitation is not an excuse for nonpayment, but the aggrieved party must seek relief through proper motion filed with the court. 
               (c)          The payment of support or maintenance, or both, takes priority over payment of debts and other obligations. 
               (d)          A party who remarries after dissolution and accepts additional obligations of support does so with full knowledge of his or her prior obligations under this proceeding. 
               (e)          Child support and maintenance are based on annual income, and it is the responsibility of a person with seasonal employment to budget income so that payments are made regularly throughout the year as ordered.
 
Task Force Comment--1991 Adoption
 
                   This rule is derived from Rule 7.01 of the Rules of Family Court Procedure and Second District Rule 2.09.
 
 
RULE 304.  SCHEDULING OF CASES
 
Rule 304.01 Scope 
 
               The purpose of this rule is to provide a uniform system for scheduling matters for disposition and trial in proceedings in family court, excluding only the following:  
               (a)          Actions for reimbursement of public assistance (Minnesota Statutes, section 256.87); 
               (b)          Contempt (Minnesota Statutes, chapter 588); 
               (c)          Domestic abuse proceedings (Minnesota Statutes, chapter 518B); 
               (d)          Child custody enforcement proceedings (Minnesota Statutes, chapter 518A); 
               (e)          Support enforcement proceedings (Minnesota Statutes, chapter 518C‑‑R.U.R.E.S.A.); 
               (f)           Withholding of refunds from support debtors (Minnesota Statutes, section 289A.50, subdivision 5); 
               (g)          Proceedings to compel payment of child support (Minnesota Statutes, section 393.07, subdivision 9); and 
               (h)          Proceedings for support, maintenance or county reimbursement judgments (Minnesota Statutes, section 548.091).
 
Rule 304.02 The Party’s Informational Statement 
 
               (a)          Timing.  Within 60 days after filing an action or, if a temporary hearing is scheduled within 60 days of the filing of the action, then within 60 days after a temporary hearing is initially scheduled to occur, whichever is later, each party shall submit, on a form to be available from the court (see Forms 9A and B appended to these rules), the information needed by the court to manage and schedule the case. 
               (b)          Content.  The information provided shall include:  
                               (1)          Whether minor children are involved, and if so:  
                                              (i)           Whether custody is in dispute; and 
                                              (ii)          Whether the case involves any issues seriously affecting the welfare of 
                                                             the children; 
                               (2)          Whether the case involves complex evaluation issues, and/or marital and nonmarital property issues; 
                               (3)          Whether the case needs to be expedited, and if so, the specific supporting facts; 
                               (4)          Whether the case is complex, and if so, the specific supporting facts; 
                               (5)          Specific facts about the case which will affect readiness for trial; 
                               (6)          Recommended alternative dispute resolution process, the timing of the process, the identity of the neutral selected by the parties or, if the neutral has not yet been selected, the deadline for selection of the neutral.  If ADR is believed to be inappropriate, a description of the reasons supporting this conclusion; and 
                               (7)          A proposal for establishing any of the deadlines or dates to be included in a scheduling order pursuant to this rule. 
               (c)          Unrepresented Parties.  Parties not represented by a lawyer shall, instead of providing the information required above on Form 9A, provide substantially the information required on Form 9B
 
               (Amended effective July 1, 1997.)
 
Rule 304.03 Scheduling Order 
 
               (a)          When issued.  Within thirty days after the expiration of the time set forth in Minn. Gen. R. Prac. 304.02 for filing informational statements, the court shall enter its scheduling order.  The court may issue the order after either a telephone or in court conference, or without a conference or hearing if none is needed.  
               (b)          Contents of Order.  The scheduling order shall provide for alternative dispute resolution as required by Rule 114.04(c) and may establish any of the following:  
                   (1)          Deadlines or specific dates for the completion of discovery and other pretrial preparation; 
                   (2)          Deadlines or specific dates for serving, filing or hearing motions; 
                   (3)          Deadlines or specific dates for completion and review of custody/visitation mediation and evaluation or property mediation and evaluation; 
                   (4)          A deadline or specific date for the prehearing conference; and 
                   (5)          A deadline or specific date for the trial or final hearing.  
 
               (Amended effective July 1, 1997.)
 
Rule 304.04 Amendment 
 
               A scheduling order pursuant to this rule may be amended at a prehearing conference or upon motion for good cause shown, or upon approval by authorized court personnel if there is agreement of all parties.
 
Advisory Committee Comment--1996 Amendment
 
                   This rule is new.  It is patterned after the similar new Minn Gen. R.. Prac. 111.  The Task Force believes that the scheduling information and procedures in family court and other civil matters should be made as uniform as possible, consistent with the special needs in family court matters.  It is amended in 1996 to include information needed for using alternative dispute resolution in family law matters as required by Minn. Gen. R. Prac. 301.01(sic), also as amended in 1996.  These amendments follow the form of similar provisions in Minn Gen. R.. Prac. 111, and should be interpreted in the same manner.  
                   Matters not scheduled under the procedures of this rule are scheduled by motion practice under Minn. Gen. R. Prac. 303. Rule 304.02 now provides a definite time by which informational statements are required, even if a temporary hearing is contemplated and postponed.  Under the prior version of the rule, informational statements might never be due because a temporary hearing might be repeatedly postponed.  If the parties seek to have a case excluded from the court scheduling process, they may do so by stipulating to having the case placed on “Inactive Status.”  This stipulation can be revoked by either party, but removes the case from active court calendar management for up to one year.  See Minnesota Conference of Chief Judges (See Exhibit A), Resolution Relating to the Adoption of Uniform Local Rules, Jan. 25, 1991. 
                   This rule provides for a separate Form 9B for use by unrepresented parties.  This form contains additional information useful to the court in managing cases where one or both parties are not represented by an attorney.  This form is updated in 1996 to request information about any history or claims of domestic abuse and the views of the parties on the use (or potential use) of alternative dispute resolution in the same manner as Form 9A or represented parties. 

 

 
RULE 305.  PREHEARING CONFERENCES
 
Rule 305.01 Prehearing Statement 
 
               Each party shall complete a prehearing conference statement substantially in the form set forth at form 2 appended to these rules which shall be served upon all parties and mailed to or filed with the court at least 10 days prior to the date of the prehearing conference.
 
Task Force Comment--1991 Adoption
 
                   This rule is derived from existing Rule 4.02 of the Rules of Family Court Procedure.  The existing family court rule includes a requirement that information be filed on forms, and that typewritten or word-processed documents would not be accepted for filing.  The Task Force considered the desirability of requiring information to be submitted on preprinted forms, and determined that such requirements should not be retained.  Many modern law offices cannot readily prepare such documents as word processing machines have displaced the typewriters for which the forms are designed.  The Task Force also believes that these requirements only increase the cost of litigation and limit access to the courts.
 
Rule 305.02 Prehearing Conference Attendance
 
               (a)          Parties and Counsel.  Unless excused by the court for good cause, the parties and lawyers who will try the proceedings shall attend the prehearing conference, prepared to negotiate a final settlement.  If a stipulation is reduced to writing prior to the prehearing conference, the case may be heard as a default at the time scheduled for the conference.  In that event, only the party obtaining the decree need appear.  
               (b)          Failure to Appear-Sanctions.  If a party fails to appear at a prehearing conference, the court may dispose of the proceedings without further notice to that party. 
               (c)          Failure to Comply-Sanctions.  Failure to comply with the rules relating to prehearing conferences may result in the case being stricken from the contested calendar, granting of partial relief to the appearing party, striking of the nonappearing party’s pleadings and the hearing of the matter as a default, award of attorney fees and costs, and such other relief as the court finds appropriate, without further notice to the defaulting party.
 
Family Court Rules Advisory Committee Commentary*
 
                   In disposing of a proceeding, the Court may dismiss it entirely, grant relief to the party appearing, grant attorney fees, bifurcate the proceedings and grant partial relief, or grant any other relief which the court may deem appropriate.  See Rule 306.2(c). 
 
                   *Original Advisory Committee Comment--Not kept current.
 
Task Force Comment--1991 Adoption
 
                   Subsection (a) of this rule is derived from existing Rule 4.03 of the Rules of Family Court Procedure.  
                   Subsection (b) of this rule is derived from existing Rule 4.04 of the Rules of Family Court Procedure.  
                   Subsection (c) of this rule is derived from existing Rule 4.05 of the Rules of Family Court Procedure.  
                   A prehearing conference without both parties and lawyers familiar with the facts of the case and the parties is rarely a worthwhile exercise and usually is a waste of resources of the parties and the court.  Nonetheless, the Task Force believes there may be situations, on rare occasion, where a party or lawyer should be excused from attendance or should be allowed to participate by conference phone call.
 
Rule 305.03 Prehearing Conference Order 
 
               If the parties are unable to resolve the case, in whole or in part, at the prehearing conference, the court shall issue an order which schedules any remaining discovery and any contemplated motions, identifies the contested issues for trial, and provides for the exchange of witness lists and exhibits to be offered at trial. 
 
Cross Reference:  Minn. Civ. Trialbook, section 5.
 
Task Force Comment--1991 Adoption
 
                   This rule is new.  The Task Force believes it is useful to have an order entered to limit the issues and preserve any agreements reached at a pretrial conference.  This rule is adapted from a recommendation of the Minnesota State Bar Association’s Family Law Section.

 

 
RULE 306.  DEFAULT
 
Rule 306.01 Scheduling of Final Hearing 
 
               Except when proceeding under Rule 302.01(b) by Joint Petition, Agreement and Judgment and Decree, to place a matter on the default calendar for final hearing or for approval without hearing pursuant to Minnesota Statutes, section 518.13, subdivision 5, the moving party shall submit a default scheduling request substantially in the form set forth in Form 10 appended to these rules and shall comply with the following, as applicable: 
               (a)          Without Stipulation-No Appearance.  In all default proceedings where a stipulation has not been filed, an affidavit of default and of nonmilitary status of the defaulting party or a waiver by that party of any rights under the Servicemembers Civil Relief Act, as amended, shall be filed with the court.  
               (b)          Without Stipulation-Appearance.  Where the defaulting party has appeared by a pleading other than an answer, or personally without a pleading, and has not affirmatively waived notice of the other party’s right to a default hearing, the moving party shall notify the defaulting party in writing at least fourteen (14) days before the final hearing of the intent to proceed to Judgment.  The notice shall state:  
 
                   You are hereby notified that an application has been made for a final hearing to be held on _______________, 20__, at __:__ _.m. at ___________________ [a date not sooner than fourteen (14) days from the date of this notice].  You are further notified that the court will be requested to grant the relief requested in the petition at the hearing.  You should contact the undersigned and the District Court Administrator immediately if you have any defense to assert to this default judgment and decree.  
 
The default hearing will not be held until the notice has been mailed to the defaulting party at the last known address and an affidavit of service by mail has been filed. 

            If the case is to proceed administratively without a hearing under Minn. Stat. § 518.13, subdivision 5, then the notice shall be sent after the expiration of the 30-day answer period, but at least fourteen (14) days before submission of a default scheduling request as required by this rule, and shall state:

 

You are hereby notified that an application will be made for a final judgment and decree to be entered not sooner than fourteen (14) days from the date of this notice.  You are further notified that the court will be requested to grant the relief requested in the Petition.  You should contact the undersigned and the District Court Administrator immediately if you have any defense to assert to this default judgment and decree.

 
               (c)          Default with Stipulation.  Whenever a stipulation settling all issues has been executed by the parties, the stipulation shall be filed with an affidavit of nonmilitary status of the defaulting party or a waiver of that party’s rights under the Servicemembers Civil Relief Act, as amended, if not included in the stipulation. 
               In a stipulation where a party appears pro se, the following waiver shall be executed by that party:
  
   I know I have the right to be represented by a lawyer of my choice.  I hereby expressly waive that right and I freely and voluntarily sign the foregoing stipulation.  
 
               (Amended effective January 1, 2006.)
 
Family Court Rules Advisory Committee Commentary*
 
                   This stipulation should establish that one of the parties may proceed as if by default, without further notice to or appearance by the other party.  
                   The waiver of counsel should be prepared as an addendum following the parties’ signatures on the stipulation. 
 
                   *Original Advisory Committee Comment--Not kept current.
 
Advisory Committee Comment--1992 Amendments
 
                   Subsections (a) and (b) of  this rule are derived from existing Rule 5.01 of the Rules of Family Court Procedure.  
                   Subsection (c) of  this rule is derived from existing Rule 5.02 of the Rules of Family Court Procedure. 
                   The default scheduling request required by Rule 306.01, as amended in 1992, serves the purpose of permitting the court administrator’s office to schedule the case for the right type of hearing.  It is not otherwise involved in the merits.  The affidavit of default is a substantive document establishing entitlement to relief by default.   
 

Advisory Committee Comment—2003 Amendment

 

                Rule 306.01 is amended in 2003 to add a new first clause. The purpose of this change is to include in the rules an express exemption of the proceedings from the requirements of the rule when the parties proceed by Joint Petition, Agreement and Judgment and Decree as allowed by new Rule 302.01(b).

 

Advisory Committee Comment—2006 Amendment

                Rule 306 is amended to clarify the role of the notice required to be given to parties who are in default but who have “appeared” in some way.  A party is not entitled to prevent entry of judgment if that party is in default by not serving and filing a timely written answer to the Petition.  Nonetheless, the court may, in its discretion, consider some appropriate measures to prevent the case from being decided on a default basis and to obviate a motion for relief from the default judgment and decree.  Accordingly, the rule is amended to afford more useful notice as to the request for a default.

                The rule does not define how a party might appear either by “a pleading other than an answer,” or “personally without a pleading.”  Both conditions should be limited to some actions that approach responding to the Petition despite the fact they may be insufficient as a matter of law to stand as a response.  Sending a letter that responds to a Petition might suffice for the first condition, as might a letter to the court.  Appearing at a court hearing despite having not answered would certainly meet the “appeared personally” condition.  When in doubt as to other circumstances, the party seeking a default should, to comply with Rule 306.01(b), provide the required notice, with the expectation that many of these responses that fall short of an answer will not prevent entry of judgment.

                The Soldiers’ and Sailors’ Civil Relief Act of 1940 was amended and renamed in 2003, and the rule is amended to use the new name as a matter of convenience.  See Servicemembers Civil Relief Act, Pub. L. No. 108-189, § 1, 117 Stat. 2835, 2840-42 (2003) (to be codified at 50 U.S.C. app. § 521).  The former rule would still apply, however, because it included the “as amended” extension of the citation.

 
Rule 306.02 Preparation of Decree 
 
               Except in a proceeding under Rule 302.01(b) commenced by Joint Petition, Agreement and Judgment and Decree, or in a scheduled default matter, proposed findings of fact, conclusions of law, order for judgment and judgment and decree shall be submitted to the court in advance of, or at, the final hearing.
 
               (Amended effective January 1, 2004.)
 
Task Force Comment--1991 Adoption
 
                   This rule is derived from existing Rule 5.03 of the Rules of Family Court Procedure.

 

Advisory Committee Comment—2003 Amendment

 

                Rule 306.02 is amended in 2003 to add a new first clause.  The purpose of this change is to include in the rules an express exemption of the proceedings from the requirements of the rule when the parties proceed by Joint Petition, Agreement and Judgment and Decree as allowed by new Rule 302.01(b).

 

 
RULE 307.  FINAL HEARINGS
 
               (a)          Failure to Appear-Sanctions.  Failure to appear at the scheduled final hearing may result in the case being stricken from the contested calendar, granting of partial relief to the appearing party, striking of the nonappearing party’s pleadings and the hearing of the matter as a default, an award of attorney’s fees and costs, and such other relief as the court finds appropriate, without further notice to the defaulting party.  
               (b)          Stipulations Entered in Open Court-Preparation of Findings.  Where a stipulation has been entered orally upon the record, the lawyer directed to prepare the decree shall submit it to the court with a copy to each party.  Unless a written, fully executed stipulation is filed or unless the decree contains the written approval of the lawyer for each party, a transcript of the oral stipulation shall be filed by the lawyer directed to prepare the decree.  Responsibility for the cost of the transcript shall be determined by the court.  Entry of the decree shall be deferred for 14 days to allow for objections unless the decree contains the written approval of the lawyer for each party.
 
Task Force Comment--1991 Adoption
 
                   Subsection (a) of this rule is derived from existing Rule 6.01 of the Rules of Family Court Procedure.  
                   Subsection (b) of this rule is derived from existing Rule 6.02 of the Rules of Family Court Procedure.

 

 
RULE 308.  FINAL DECREE
 
Rule 308.01 Notices; Service 
 
               (a)          Awards of Child Support and/or Maintenance.  All judgments and decrees which include awards of child support and/or maintenance, unless otherwise directed by the court, shall include the provisions set forth in Minn. Gen. R. Prac. 303.06. 
               (b)          Public Assistance.  When a party is receiving or has applied for public assistance, the party obtaining the judgment and decree shall serve a copy on the agency responsible for child support enforcement, and the decree shall direct that all payments of child support and spousal maintenance shall be made to the agency providing the assistance for as long as the custodial parent is receiving assistance. 
               (c)          Child Support Enforcement.  When a private party has applied for or is using the services of the local child support enforcement agency, a copy of the decree shall be served by mail by the party submitting the decree for execution upon the county agency involved. 
               (d)          Supervised Custody or Visitation.  A copy of any judgment and decree directing ongoing supervision of custody or visitation shall be provided to the appropriate agency by the party obtaining the decree.
 
Family Court Rules Advisory Committee Commentary*
 
                   Minnesota Statutes, section 518.551 requires that maintenance or support must be ordered payable to the public agency so long as the obligee is receiving public assistance. 
                   Agencies responsible for enforcement of child support in private cases also require a copy of the judgment and decree. 
 
                   *Original Advisory Committee Comment--Not kept current.
 
Task Force Comment--1991 Adoption
 
                   Subdivision (a) of this rule is derived from existing Rule 7.01 of the Rules of Family Court Procedure.  The list of provisions is not set forth in this rule, as it was set forth in full in new Minn. Gen. R. Prac. 303.06. 
                   Subdivision (b) is derived from Rule 7.02 of the Rules of Family Court Procedure, and also in part from Second District Local Rule 7.021. 
                   Subdivision (c) is derived from Second District Local Rule 7.022. 
                   Subdivision (d) of this rule, replacing existing Rule 7.03 of the Rules of Family Court Procedure, was recommended to the Task Force by the Minnesota State Bar Association Family Law Section.
 
Rule 308.02 Statutorily Required Notices 
 
               Where statutes require that certain subjects be addressed by notices in an order or decree, the notices shall not be included verbatim but shall be set forth in an attachment and incorporated by reference.
 
Family Court Rules Advisory Committee Commentary*
 
                   See Rule 10.01, Form 3, for the concept of the form of the attachment. 
 
*Original Advisory Committee Comment--Not kept current.
 
Task Force Comment--1991 Adoption
 
                   This rule is derived from existing Rule 7.04 of the Rules of Family Court Procedure.
 
Rule 308.03 Sensitive Matters 
 
               Whenever the findings of fact include private or sensitive matters, a party may submit a judgment and decree supported by separate documents comprising findings of fact, conclusions of law, and order for judgment.
 
Task Force Comment--1991 Adoption
 
                   The Task Force recommends repeal of existing Rule 7.05 of the Rules of Family Court Procedure because the requirement for findings is well established by the common law, and a rule recodifying the settled law is surplusage. 
                   The recommended rule is patterned after Second District Rule 7.051.  Its purpose is to allow sensitive factual and legal matters to be preserved in separate documents so that the need for disseminating confidential and sensitive matters can be minimized.  This rule does not create a right to maintain the privacy of any portion of the findings; it allows the court to create documents that may be useful for some public purposes without including all other parts of the findings.

 

 
RULE 309.  CONTEMPT
 
Rule 309.01 Initiation 
 
               (a)          Moving Papers-Service; Notice.  Contempt proceedings shall be initiated by an order to show cause served upon the person of the alleged contemnor together with motions accompanied by appropriate supporting affidavits. 
               The order to show cause shall direct the alleged contemnor to appear and show cause why he or she should not be held in contempt of court and why the moving party should not be granted the relief requested by the motion. 
               The order to show cause shall contain at least the following: 
                   (1)          a reference to the specific order of the court alleged to have been violated and date of entry of the order; 
                   (2)          a quotation of the specific applicable provisions ordered; and 
                   (3)          the alleged failures to comply. 
               (b)          Affidavits.  The supportive affidavit of the moving party shall set forth each alleged violation of the order with particularity.  Where the alleged violation is a failure to pay sums of money, the affidavit shall state the kind of payments in default and shall specifically set forth the payment dates and the amounts due, paid and unpaid for each failure. 
               The responsive affidavit shall set forth with particularity any defenses the alleged contemnor will present to the court.  Where the alleged violation is a failure to pay sums of money, the affidavit shall set forth the nature, dates and amount of payments, if any. 
               The supportive affidavit and the responsive affidavit shall contain numbered paragraphs which shall be numbered to correspond to the paragraphs of the motion where possible.
 
Family Court Rules Advisory Committee Commentary*
 
                   Service of the order to show cause upon the person provides jurisdiction for the issuance of a writ of attachment or bench warrant, if necessary, and meets the requirement or an opportunity to be heard.  See Clausen v. Clausen, 250 Minn. 293, 84 N.W.2d 675 (1976); Hopp v. Hopp, 279 Minn. 170, 156 N.W.2d 212 (1968). 
 
                   *Original Advisory Committee Comment--Not kept current.
 
Task Force Comment--1991 Adoption
 
                   Subdivision (a) of this rule is derived from existing Rule 8.01 of the Rules of Family Court Procedure. 
                   Subdivision (b) of this rule  is derived from existing Rule 8.01 of the Rules of Family Court Procedure.  The new language is derived from Second District Local Rule 8.011.
 
Rule 309.02 Hearing 
 
               The alleged contemnor must appear in person before the court to be afforded the opportunity to resist the motion for contempt by sworn testimony.  The court shall not act upon affidavit alone, absent express waiver by the alleged contemnor of the right to offer sworn testimony.
 
Family Court Rules Advisory Committee Commentary*
 
                   For the right to counsel in contempt proceedings, see Cox v. Slama, 355 N.W.2d 401 (Minn. 1984). 
 
                   *Original Advisory Committee Comment--Not kept current.
 
Task Force Comment--1991 Adoption
 
                   This rule is derived from existing Rule 8.02 of the Rules of Family Court Procedure.
 
Rule 309.03 Sentencing 
 
               (a)          Default of Conditions for Stay.  Where the court has entered an order for contempt with a stay of sentence and there has been a default in the performance of the condition(s) for the stay, before a writ of attachment or a bench warrant will be issued, an affidavit of noncompliance and request for writ of attachment must be served upon the person of the defaulting party, unless the person is shown to be avoiding service. 
               (b)          Writ of Attachment.  The writ of attachment shall direct law enforcement officers to bring the defaulting party before the court for a hearing to show cause why the stay of sentence should not be revoked.  A proposed order for writ of attachment shall be submitted to the court by the moving party.
 
Task Force Comment--1991 Adoption
 
                   Subdivision (a) of this rule is derived from existing Rule 8.03 of the Rules of Family Court Procedure. 
                   Subdivision (b) of this rule is derived from existing Rule 8.03 of the Rules of Family Court Procedure, with the new language added from Second District Rule 8.031.

 

 
RULE 310.  ALTERNATIVE DISPUTE RESOLUTION
 
Rule 310.01 Applicability 
 
               All family law matters in district court are subject to Alternative Dispute Resolution (ADR) processes as established in Rule 114, except for: 
               1.            actions enumerated in Minnesota Statutes, chapter 518B (Domestic Abuse Act), 
               2.            contempt actions, and 
               3.            maintenance, support, and parentage actions when the public agency responsible for child support enforcement is a party or is providing services to a party with respect to the action. 
               The court shall not require parties to participate in any facilitative process where one of the parties claims to be the victim of domestic abuse by the other party or where the court determines there is probable cause that one of the parties or a child of the parties has been physically abused or threatened with physical abuse by the other party.  In circumstances where the court is satisfied that the parties have been advised by counsel and have agreed to an ADR process that will not involve face-to-face meeting of the parties the court may direct that the ADR process be used. 
               The court shall not require parties to attempt ADR if they have made an unsuccessful effort to settle all issues with a qualified neutral before the filing of Informational Statement.  
 
               (Amended effective July 1, 1997.)
 
Advisory Committee Comment--1996 Amendment
 
                   This rule is changed from a limited rule dealing only with mediation to the main family law rule governing use of ADR.  All of the provisions of the existing rule are deleted because their subject matter is now governed by either the amended rule or Minn. Gen. R. Pract. 114. The committee believes that there are significant and compelling reasons to have all court-annexed ADR governed by a single rule.  This will streamline the process and make it more cost-effective for litigants, and will also make the process easier to understand for ADR providers and neutrals, many of whom are not lawyers. 
                   The rule is not intended to discourage settlement efforts in any action.  In cases where any party has been, or claims to have been, a victim of domestic violence, however, courts need to be especially cautious.  Facilitative processes, particularly mediation, are especially prone to abuse since they place the parties in direct contact and may encourage them to compromise their rights in situations where their independent decision-making capacity is limited.  The rule accordingly prohibits their use where those concerns are present. 
 
Rule 310.02 Post-Decree Matters 
 
               The court may order ADR under Rule 114 in matters involving post-decree relief.  The parties shall discuss the use of ADR as part of the conference required by Rule 303.03(c).  
 
               (Amended effective July 1, 1997.)
 
Advisory Committee Comment--1996 Amendment
 
                   This rule expressly provides for use of ADR in post-decree matters.  This is appropriate because such matters constitute a significant portion of the litigation in family law and because these matters are often quite susceptible to successful resolution in ADR. 
                   The committee believes the existing mechanism requiring the parties to confer before filing any motion other than a motion for temporary relief provides a suitable mechanism for considering ADR and Rule 303.03(c) is amended to remind the parties of this obligation. 
 
310.03-310.09 (Deleted effective July 1, 1997.)

            

 
RULE 311.  FORMS
 
               The forms contained in the Appendix of Forms are sufficient under these rules.
 
Task Force Comment--1991 Adoption
 
 
                   This rule is derived from existing Rule 10.01 of the Rules of Family Court Procedure.

 

 
RULE 312. REVIEW OF REFEREE’S FINDINGS OR RECOMMENDATIONS
 
Rule 312.01 Notice of Assignment to Judge; Parties’ Submissions 
 
               Upon the filing of the notice of review of a referee’s findings or recommended order, the court administrator shall notify each party: 
               (a)          of the name of the judge to whom the review has been assigned; 
               (b)          that the moving party shall have 10 days from the date of mailing the notice of assignment in which to file and serve a memorandum; and 
               (c)          that the responding party(s) shall have 20 days from the date of mailing the notice of assignment within which to file and serve a responsive memorandum. 
               Failure to file and serve these submissions on a timely basis may result in dismissal of the review or disallowance of the submissions.  No additional evidence may be filed and no personal appearance will be allowed except upon order of the court for good cause shown after notice of motion and motion. 
               The review shall be based on the record before the referee and additional evidence will not be considered, except for compelling circumstances constituting good cause.
 
Task Force Comment--1991 Adoption
 
                   This rule is derived from Second District Rules 11.03 and 11.04.
 
Rule 312.02 Transcript of Referee’s Hearing 
 
               Any party desiring to submit a transcript of the hearing held before the referee shall make arrangements with the court reporter at the earliest possible time.  The court reporter must advise the parties and the court of the date by which the transcript will be filed.  The order and submission of the transcript shall not delay the due dates for the submissions described in Rule 312.01.
 
Task Force Comment--1991 Adoption
                   
                   This rule is derived from Second District Rule 11.05.
 
 
RULE 313.  CONFIDENTIAL NUMBERS AND TAX RETURNS
 
               The requirements of Rule 11 of these rules regarding submission of restricted identifiers (e.g., social security numbers, employer identification numbers, financial account numbers) and financial sorce documents (e.g., tax returns, wage stubs, credit card statements) apply to all family court matters).
 
               (Amended effective July 1, 2005.)
      
Advisory Committee Comment--2000 Amendments
   
                   Rule 313 is new in 2000 and is designed to facilitate confidential treatment of social security numbers and tax returns in family court proceedings.  Confidentiality is required under both state and federal law.  See Minnesota Statutes, section 518.146 (1999 Supplement); 2000 Minnesota Laws, chapter 403 (codified as Minnesota Statutes, section 518.5513, subdivision 3); 42 U.S.C., section 666(a)(13), (c)(2)(A); 42 U.S.C., section 405(c)(2)(C)(vii).  This rule relieves court administration staff from the daunting task of assuring that social security numbers and tax returns are not inadvertently disclosed and places the primary responsibility for maintaining privacy with the persons submitting the  information to the court.  
   State law also requires the social security number to be included in each child support order.  See, e.g., Minnesota Statutes, sections 256.87, subdivision 1a; 257.66; 518.171, subdivision 1(a)(2); 518.5853, subdivision 5 (1998; 1999 Supp.).  This rule contemplates that inclusion of social security numbers may appropriately be accomplished by relegating  social security numbers to a separate page that is referenced in the order. 
 
 
PART B. EXPEDITED CHILD SUPPORT PROCESS

 

1.  GENERAL RULES

 

RULE 351.  SCOPE; PURPOSE

 

Rule 351.01  Scope

 

       These rules govern the procedure for all proceedings conducted in the expedited process, regardless of whether the presiding officer is a child support magistrate, family court referee, or district court judge. The Minnesota Rules of Civil Procedure, Minnesota Rules of Evidence, and other provisions of the Minnesota General Rules of Practice for the District Courts shall apply to proceedings in the expedited process unless inconsistent with these rules.  These rules do not apply to matters commenced in or referred to district court.

 

Rule 351.02  Purposes and Goals of the Expedited Child Support Process

 

       Subdivision 1.  Purposes.  The purposes of these rules are to establish an expedited process that:

            (a)   is streamlined;

             (b)  is uniform across the state;

             (c)  is easily accessible to the parties; and

(d)     results in timely and consistent issuance of orders.

       Subd. 2.  Goals.  These rules should be construed to:

(a)     be a constitutional system;

(b)     be an expedited process;

(c)     be family and user friendly;

(d)     be fair to the parties;

(e)     be a cost-effective system;

(f)      address local administration and implementation concerns;

(g)     maintain simple administrative procedures and focus on problem cases;

(h)     comply with federal and state laws;

(i)       maximize federal financial participation;

(j)       ensure consistent decisions statewide; and

(k)     have adequate financial and personnel resources.

 

RULE 352.  DEFINITIONS

 

Rule 352.01  Definitions

 

       For purposes of these rules, the following terms have the following meanings:

       (a)  “Answer” means a written document responding to the allegations of a complaint or motion.

       (b)  “Child support magistrate” means an individual appointed by the chief judge of the judicial district to preside over matters in the expedited process.  “Child support magistrate” also means any family court referee or district court judge presiding over matters in the expedited process.

       (c)  “County agency” means the local public authority responsible for child support enforcement.

       (d)  “County attorney” means the attorney who represents the county agency, whether that person is employed by the office of the county attorney or under contract with the office of the county attorney.

       (e)  “Initiating party” means a person or county agency starting the proceeding in the expedited process by serving and filing a complaint or motion.

       (f)  “IV-D case” means any proceeding where a party has either (1) assigned to the State rights to child support because of the receipt of public assistance as defined in Minn. Stat. § 256.741 (2000), or (2) applied for child support services under Title IV-D of the Social Security Act, 42 U.S.C. § 654(4) (1994).  “IV-D case” does not include proceedings where income withholding is the only service applied for or received under Minn. Stat. § 518.6111 (2000).

       (g)  “Noninitiating party” means a person or county agency responding to a complaint or motion, including any person who assigned to the State rights to child support because of the receipt of public assistance or applied-for child support services.

       (h)  “Parentage” means the establishment of the existence or non-existence of the parent-child relationship.

       (i)  “Parenting time” means the time a parent spends with a child regardless of the custodial designation regarding the child.  “Parenting time” previously was known as “visitation.”

       (j)  “Party” means any person or county agency with a legal right to participate in the proceedings.

       (k)  “Response” means a written answer to the complaint or motion, a “request for hearing” form, or, in a parentage matter, a “request for blood or genetic testing” form.

       (l)  “Support” means child support; child care support; medical support, including medical and dental insurance, and unreimbursed medical and dental expenses; expenses for confinement and pregnancy; arrearages; reimbursement; past support; related costs and fees; and interest and penalties.  “Support” also means the enforcement of spousal maintenance when combined with child support, child care support, or medical support. 

 

RULE 353.  TYPES OF PROCEEDINGS

 

Rule 353.01  Types of Proceedings

 

       Subdivision 1.  Mandatory Proceedings.  Proceedings to establish, modify, and enforce support shall be conducted in the expedited process if the case is a IV-D case, except as provided in subdivision 2 and Rule 353.02.  Proceedings to enforce spousal maintenance, including spousal maintenance cost-of-living adjustment proceedings, shall, if combined with a support issue, be conducted in the expedited process if the case is a IV-D case, except as provided in subdivision 2 and Rule 353.02.

       Subd. 2.  Permissive Proceedings.

(a)  County Option.  At the option of each county, the following proceedings may be initiated in the expedited process if the case is a IV-D case, except to the extent prohibited by subdivision 3:

                    (1)    parentage actions; and

                    (2)    civil contempt matters.

(b)     Parentage Actions.  Any order issued pursuant to Rule 353.01, subd. 2(b) shall address the financial issues is appropriate, whether or not agreed upon by the parties.

                    (1)  Complete Order.  Notwithstanding subdivision 3, a child support magistrate has the authority to establish the parent-child relationship, legal and physical custody, parenting time, and the legal name of the child when:

    (A)  the parties agree or stipulate to all of these particular issues; or

    (B)  if the pleadings specifically address these particular issues and a party fails to serve a response or appear at the hearing.

 

(2)  Partial Order.

 

         (A)  Minimum Requirements.  If the parties at least agree to the parent-child relationship and temporary or permanent physical custody, the child support magistrate shall issue an order:

 

                 (1) establishing the parent-child relationship; and

                 (2) establishing temporary or permanent physical custody.

 

         (B)  Further Agreed Upon Issues.  The order the child support magistrate shall also establish parenting time and the legal name of the child if the parties so agree.

 

The order is final as the parent-child relationship.  The order is also final as to any agreement concerning permanent legal or physical custody, parenting time, name of the child, and any financial issues decided by the child support magistrate.  If there is no agreement concerning permanent legal and/or physical custody, parenting time, or the legal name of the child, those issues hall be referred to the district court.  The issues referred to the district court are considered pending before the district court and are not final until the district court issues an order deciding those issues.  The order of the child support magistrate referring the remaining issues to district court is not appealable pursuant to Rule 378.  This rule shall not limit the right to appeal the district court’s order.  When one or more issues are referred to district court, service of the summons and complaint in the expedited process is sufficient for the matter to proceed in district court.

 

(3)  Order When Parent-Child Relationship Not Resolved.  In an action to establish parentage, if the parties do not agree to the parent-child relationship and the temporary or permanent physical custody, the child support magistrate shall make findings and issue an order as follows:

 

         (A)  Blood or Genetic Testing Not Completed.  When the issue of the parent-child relationship is not resolved and genetic testing has not been completed, the child support magistrate shall order genetic testing and shall continue the hearing in the expedited process to allow the tests to be completed and the results received.

         (B)  Blood or Genetic Testing Completed.  When genetic testing has been completed, if the parties still disagree about the parent-child relationship, the child support magistrate shall refer the entire matter to the district court for further proceedings.  The child support magistrate may set temporary support pursuant to Rule 371.11, subd. 2.

 

(c)  Change of Venue.  Upon motion by a party for a change of venue, a child support magistrate shall issue the following order:

        

         (1)  Upon consent of all parties, a child support magistrate may issue an order changing venue. The court administrator shall forward the court file to the county that has been granted venue. 

 

         (2)    If any party disputes a motion to change venue, the child support magistrate shall issue an order referring the matter to district court and the court administrator shall schedule the matter for hearing.  The court administrator shall mail notice of the date, time, and location of the hearing to all parties.

       Subd. 3.  Prohibited Proceedings and Issues.  The following proceedings and issues shall not be conducted or decided in the expedited process:

       (a)  non-IV-D cases;

       (b) establishment, modification, or enforcement of custody or parenting time under Minn. Stat. ch. 518 (2000), unless authorized in subdivision 2;

       (c)  establishment or modification of spousal maintenance;

       (d) issuance, modification, or enforcement of orders for protection under Minn. Stat. ch. 518B;

       (e)  division of marital property;

       (f)  determination of parentage, except as permitted by subdivision 2(b);

       (g)  evidentiary hearings to establish custody, parenting time, or the legal name of the child under Minn.  Stat. ch. 257 (2000);

       (h) evidentiary hearings in contempt matters;

       (i)  matters of criminal contempt;

       (j)  motions to change venue, except as permitted in subdivision 2;

       (k) enforcement proceedings prohibited in Rule 373.01;

       (l)  matters of criminal non-support; and

       (m)       motions to vacate a recognition of paternity or paternity adjudication.

       (n) the constitutionality of the statutes and rules.

 

       (Amended effective November 1, 2003.)

 

Rule 353.02  Procedure When Prohibited Issues

 

       Subdivision 1.  Generally.  These rules do not prevent a party, upon timely notice to all parties and to the county agency, from commencing a proceeding or bringing a motion in district court if the proceeding or motion involves one or more issues identified in Rule 353.01, subd. 1, and one or more issues identified in Rule 353.01, subd. 3.

       Subd. 2.  Multiple Issues in District Court.  If a proceeding is commenced in district court, the district court judge shall decide all issues before the court.  If the district court judge cannot decide the support issues without an additional hearing, the district court judge shall determine whether it is in the best interests of the parties to retain the support issues or refer them to the expedited process for decision by a magistrate.  If the district court judge refers the support issues to the magistrate, the referral shall include a clear statement of the issues referred and a description of the additional information needed, and shall provide the date, time, and location of the continued hearing.  If possible at the time of the referral, the district court judge shall decide temporary support.  A matter referred to district court pursuant to subdivision 3 shall be decided in its entirety by the district court judge and shall not be referred back to the expedited process.  After the district court judge has issued a final order in the matter, subsequent review or motions may be heard in the expedited process.

       Subd. 3.  Prohibited Issues in Expedited Child Support Process.  If a proceeding is commenced in the expedited process and the complaint, motion, answer, responsive motion, or counter motion raises one or more issues identified in Rule 353.01, subd. 3, all parties, including the county agency, may agree in writing to refer the entire matter to district court without first appearing before the child support magistrate.  Notice of the agreement must be filed with the court at least five (5) days prior to the scheduled hearing in the expedited process.  The child support magistrate shall issue an order referring the entire matter to district court.  Absent an agreement by all parties and upon motion of a party or upon the child support magistrate’s own initiative, the child support magistrate assigned to the matter shall, either before or at the time of the hearing, decide whether to:

       (a)  refer the entire matter to district court; or

       (b)  determine the temporary support amount and refer all issues to district court. The district court judge shall issue an order addressing all issues and, with respect to support, may adopt and incorporate by reference the findings and order of the child support magistrate.  If the district court judge does not adopt the findings and order of the child support magistrate, the judge shall make the necessary findings and order regarding permanent support.  In the alternative, the order for temporary support shall become permanent upon the dismissal or withdrawal of the prohibited issue referred to district court.  If the district court order fails to address the issue of permanent support, the order for temporary support shall become permanent and shall be deemed incorporated upon issuance of the district court order.  If the district court judge fails to issue an order, on the 180th day after service of the notice of filing of the order for temporary support, the order for temporary support shall become permanent.

       When a matter is referred to district court, service of the summons and complaint or notice of motion and motion in the expedited process is sufficient for the matter to proceed in district court.  A child support magistrate’s order that refers a matter to the district court calendar shall provide the date, time, and location of the continued hearing.

 

       (Amended effective November 1, 2003.)

 

RULE 354.  COMPUTATION OF TIME

 

 

Rule 354.01  Generally

 

       All time periods shall be measured by starting to count on the first day after any event happens which by these rules starts the running of a time period.  When the last day of the time period is any day other than a business day, then the last day is the next business day.

 

Rule 354.02  Time Periods Less Than Seven Days

 

       When any prescribed time period is less than seven (7) days, only business days shall be counted.

 

Rule 354.03  “Business Day” Defined

 

       A “business day” means any day that is not a Saturday, Sunday, or legal holiday.  As used in these rules, “legal holiday” means New Year’s Day, Martin Luther King’s Birthday, Washington’s and Lincoln’s Birthday (Presidents’ Day), Memorial Day, Independence Day, Labor Day, Veteran’s Day, Thanksgiving Day, the day after Thanksgiving Day, Christmas Day, and any other day designated as a holiday by the President or Congress of the United States, by the State, or by a county.

 

Advisory Committee Comment

 

State-Level Judicial-Branch Holidays.  The legal holidays listed in Rule 354.03 are based upon Minn. Stat. § 645.44, subd. 5 (2000), which defines state-level judicial-branch holidays.  The statute further provides that when New Year’s Day (January 1), Independence Day (July 4), Veteran’s Day (November 11), or Christmas Day (December 25) falls on a Sunday, the following day (Monday) shall be a holiday, and that when New Year’s Day, Independence Day, Veteran’s Day, or Christmas Day falls on a Saturday, the preceding day (Friday) shall be a holiday.  Minn. Stat. § 645.44, subd. 5, also authorizes the judicial branch to designate certain other days as holidays.  The Judicial Branch Personnel Plan designates the Friday after Thanksgiving as a holiday.

County Holidays.  Counties are authorized to close county offices on certain days under Minn. Stat. § 373.052 (2000).  Thus, if a county closes its offices under Minn. Stat. § 373.052 on a day that is not a state-level judicial-branch holiday, such as Christopher Columbus Day (the second Monday in October), the court in that county would nevertheless include that day as a holiday for the purpose of computing time under Rule 354.03See Mittelstadt v. Breider, 286 Minn. 211, 212, 175 N.W.2d 191, 192 (1970) (applying Minn. Stat. § 373.052 to filing of notice of election contest with district court).  If a county does not close its offices on a day that is a state-level judicial-branch holiday, such as the Friday after Thanksgiving, the court in that county must still include that day as a holiday for the purpose of computing time under Rule 354.03.

 

Rule 354.04  Additional Time If Service by Mail or Service Late in Day

 

       Whenever a person has the right or is required to do an act within a prescribed period of time after service of a notice or other paper and the notice or other paper is served by U.S. mail, three (3) days shall be added to the prescribed time period.  If service is made by any means other than by U.S. mail and accomplished after 5:00 p.m. Central Time, one (1) additional day shall be added to the prescribed time period.

 

RULE 355.  METHODS OF SERVICE

 

Rule 355.01  Generally

 

       Subdivision 1.  Service Required.  Except for ex parte motions allowed by statute or these rules, every paper or document filed with the court shall be served on all parties and the county agency.

       Subd. 2.  Service Upon Attorney for Party.  If a party, other than the county agency, is represented by an attorney as shown by a certificate of representation in the court file, service shall be made upon the party’s attorney, unless personal service upon the represented party is required under these rules.  Except where personal service upon the county agency is required under these rules, service upon the county agency shall be accomplished by serving the county attorney.

 

Rule 355.02  Types of Service

 

       Subdivision 1.  Personal Service.

       (a) Upon Whom.

             (1) Upon an Individual.  Personal service upon an individual in the state shall be accomplished by delivering a copy of the summons and complaint, notice, motion, or other document to the individual personally or by leaving a copy at the individual’s house or usual place of residence with some person of suitable age and discretion who presently lives at that location.  If the individual has, pursuant to statute, consented to any other method of service or appointed an agent to receive service, or if a statute designates a state official to receive service, service may be made in the manner provided by such statute.  If the individual is confined to a state institution, personal service shall be accomplished by also serving a copy of the document upon the chief executive officer at the institution.  Personal service upon an individual outside the state shall be accomplished according to the provisions of Minn. Stat. ch. 518C (2000) and Minn. Stat. § 543.19 (2000). Personal service may not be made on a legal holiday or election day.

             (2) Upon the County Agency.  Personal service upon the county agency shall be accomplished by serving the director of the county human services department or the director’s designee.

       (b) By Whom Served.   Unless otherwise ordered by the child support magistrate, personal service shall be made only by the sheriff or by any other person who is at least 18 years of age who is not a party to the proceeding.  Pursuant to Minn. Stat. § 518.5513 (2000), an employee of the county agency may serve documents on parties. 

       (c)  Alternative Personal Service. 

             (1) Acknowledgement by Mail.  As an alternative to personal service, service may be made by U.S. mail if acknowledged in writing.  Any party attempting alternative personal service shall include two copies of a notice and acknowledgment of service by mail conforming substantially to Form 22 set forth in the Minnesota Rules of Civil Procedure, along with a return envelope, postage prepaid, addressed to the sender.  Any person served by U.S. mail who receives a notice and acknowledgement form shall complete the acknowledgment part of the form and return one copy of the completed form to the serving party.  If the serving party does not receive the acknowledgment form within twenty (20) days, service is not valid upon that party.  The serving party may then serve the summons and complaint by any means authorized under this subdivision.  The child support magistrate may order the costs of personal service to be paid by the person served, if such person does not complete and return the notice and acknowledgment form within twenty (20) days.

(2)  Service by Publication.

             (A) Service.  Service by publication means the publication of the entire summons or notice in the regular issue of a qualified newspaper, once each week for three (3) weeks.  Service by publication shall be permitted only upon order of a child support magistrate.  The child support magistrate may order service by publication upon the filing of an affidavit by the serving party or the serving party’s attorney stating that the person to be served is not a resident of the state or cannot be found within the state, the efforts that have been made to locate the other party, and either that the serving party has mailed a copy of the summons or notice to the other party’s place of residence or that such residence is not known to the serving party.  When the person to be served is not a resident of the state, statutory requirements regarding long-arm jurisdiction shall be met.

           (B)   Defense by Noninitiating Party.  If the summons or notice is served by publication and the noninitiating party receives no actual notification of the proceeding, either before judgment or within one year of entry of judgment the noninitiating party may seek relief pursuant to Minn. R. Civ. P. 4.043.

       Subd. 2.  Service by United States Mail.  Service by United States mail means mailing a copy of the document by first-class mail, postage prepaid, addressed to the person to be served at the person’s last known address.  Service by mail shall be made only by the sheriff or by any other person who is at least 18 years of age who is not a party to the proceeding.  Pursuant to Minn. Stat. § 518.5513 (2000), an employee of the county agency may serve documents on the parties.

       Subd. 3.  Service by Facsimile Transmission.   Unless these rules require personal service, any document may be served by transmitting a copy by facsimile machine.

 

Rule 355.03  Completion of Service

 

       Personal service is complete upon delivery of the document.  Service by U.S. mail is complete upon mailing.  Service by publication is complete twenty-one (21) days after the first publication.  Service by facsimile is complete upon completion of the facsimile transmission.

 

Rule 355.04  Proof of Service

 

       Subdivision 1.  Parties.  All papers and documents filed with the court shall be accompanied by an affidavit of service, an acknowledgment of service by the party or party’s attorney if served by alternative service, or, if served by publication, by the affidavit of the printer or the printer’s designee.  An affidavit of service shall describe what was served, state how the document was served, upon whom it was served, and the date, time, and place of service.

       Subd. 2.  Court Administrator.  If the court administrator is required or permitted under these rules to serve a document, service may be proved by filing an affidavit of service, by filing a copy of the written notice, or by making a notation in the court’s computerized records that service was made.

 

Rule 355.05  Filing of Pleadings, Motions, Notices and Other Papers

 

RULE 356.  FEES

 

Rule 356.01 Collection of Fees

 

       The court administrator shall charge and collect fees pursuant to Minnesota Statutes.

 

Advisory Committee Comment

 

        Minnesota Statutes § 357.021, subdivision 2 (2000), establishes the various fees that must be charged and collected by court administrators.  Specifically included is a filing fee, which is to be charged and collected from a party upon the filing of that party’s first paper in the proceeding.  Also included is a modification fee, which is to be paid upon the filing of a motion to modify support and upon the filing of a response to such a motion.

 

Rule 356.02  Waiver of Fees

 

       If a party indicates an inability to pay any fee required under Rule 356.01, the court administrator shall explain that the party may apply for permission to proceed without payment of the fee.  Upon request, the court administrator shall provide to such a party an application to proceed in forma pauperis.  If a party signs and submits to the court administrator an application to proceed without payment of the fee, and such a request to waive the fee is approved by a child support magistrate, the court administrator shall not charge and collect the fee.

 

Advisory Committee Comment

 

Minnesota Statutes § 563.01, subdivision 3 (2000), provides that “the court shall allow the person to proceed in forma pauperis” if the court makes certain findings.  Under this statute, only judicial officers, and not court administrators, are authorized to issue orders granting in forma pauperis status.

 

RULE 357.  LEGAL  REPRESENTATION AND APPOINTMENT OF GUARDIAN AD LITEM

 

Rule 357.01  Right to Representation

 

       Each party appearing in the expedited process has a right to be represented by an attorney.  A party, however, does not necessarily have the right to appointment of an attorney at public expense as provided in Rule 357.03.

 

Rule 357.02  Certificate of Representation

 

       An attorney representing a party in the expedited process, other than a public defender or county attorney, shall on or before the attorney’s first appearance file with the court a certificate of representation.

 

Rule 357.03  Appointment of Attorney at Public Expense

 

       Unless a party voluntarily waives the right to counsel, the child support magistrate shall appoint an attorney at public expense for a party who requests an attorney and who cannot afford to retain an attorney when the case involves:

(a)  establishment of parentage; or

             (b) contempt proceedings in which incarceration of the party is a possible outcome of the proceeding.

 

             Pursuant to Minn. Stat. § 257.69 (2000), a court-appointed attorney shall represent a party with respect to all issues necessary for the initial establishment of parentage, including child support, custody,  parenting time, and name of the child.

 

Advisory Committee Comment

 

        Parentage.  The Minnesota Parentage Act, codified as Minn. Stat. §§ 257.51 – .74 (2000), provides that “the court shall appoint counsel for a party who is unable to pay timely for counsel in proceedings under sections 257.51 to 257.74.”  Minn. Stat. § 257.69, subd. 1 (2000).  A party has a right to appointed counsel for all matters brought under the Parentage Act.  See M.T.L. v. Dempsey, 504 N.W.2d 529, 531 (Minn. App. 1993). 

       Contempt.  In Cox v. Slama, 355 N.W.2d 401, 403 (Minn. 1984), the court established the right to counsel for persons facing civil contempt for failure to pay child support when incarceration is a real possibility.

 

Rule 357.04  Appointment of Guardian Ad Litem

 

       Subdivision 1.  Applicability of Rules of Guardian Ad Litem Procedure.  Child support magistrates shall appoint guardians ad litem to advocate for the best interests of children when required under Minn. Stat. § 518.165 (2000) or any other applicable statute.  When a child support magistrate determines that the appointment of a guardian ad litem is necessary, that appointment shall be made according to the Minnesota General Rules of Practice 901-913.

       Subd. 2.  Exception.  The Minnesota Rules of Guardian Ad Litem Procedure do not apply when the person for whom the guardian ad litem is being appointed is a minor parent.

 

RULE 358.  COURT INTERPRETERS

 

Rule 358.01  Appointment Mandatory

 

       The child support magistrate shall appoint a qualified interpreter in any proceeding conducted in the expedited process in which a person handicapped in communication is a party or witness.  Such appointment shall be made according to the provisions of Minn. Gen. R. Prac. 8.

 

Rule 358.02  “Person Handicapped in Communication” Defined

 

       For the purpose of Rule 358.01, a “person handicapped in communication” is one who, because of a hearing, speech, or other communication disorder, or because of difficulty in speaking or comprehending the English language, is unable to fully understand the proceedings in which the person is required to participate, or when named as a party to a legal proceeding is unable by reason of the handicap to obtain due process of law.

 

Advisory Committee Comment

 

Rules 358.01 and 358.02 are based upon the provisions of Minn. Stat. §§  546.42 and  546.43 (2000) which set forth the types of proceedings in which qualified interpreters must be appointed.

 

RULE 359.  TELEPHONE AND INTERACTIVE VIDEO

 

Rule 359.01  Telephone and Interactive Video Permitted

 

       A child support magistrate may on the magistrate’s own initiative conduct a hearing by telephone or, where available, interactive video.  Any party may make a written or oral request to the court administrator or the court administrator’s designee to appear at a scheduled hearing by telephone or, where available, interactive video.  In the event the request is for interactive video, the request shall be made at least five (5) days before the date of the scheduled hearing.  A child support magistrate may deny any request to appear at a hearing by telephone or interactive video.

 

Advisory Committee Comment

 

        The Advisory Committee encourages the use of telephone and, where available, interactive video, to conduct proceedings in the expedited process.

 

Rule 359.02  Procedure

 

       The court administrator or court administrator’s designee shall arrange for any telephone or interactive video hearing approved by the child support magistrate. When conducting a proceeding by telephone or interactive video and a party or witness resides out of state, the child support magistrate shall ensure that the requirements of Minn. Stat. § 518C.316 (2000) are met.  The child support magistrate shall make adequate provision for a record of any proceeding conducted by telephone or interactive video.  No recording may be made of any proceeding conducted by telephone or interactive video, except the recording made as the official court record.

 

Rule 359.03  In-Court Appearance Not Precluded

 

       Rule 359.01 does not preclude any party or the county attorney from being present in person before the child support magistrate at any motion or hearing.

 

RULE 360.  INTERVENTION

 

Rule 360.01  County Agency

 

       Subdivision 1.  Intervention as a Matter of Right.  To the extent allowed by law, the county agency may, as a matter of right, intervene as a party in any matter conducted in the expedited process.  Intervention is accomplished by serving upon all parties by United States mail a notice of intervention.  The notice of intervention and affidavit of service shall be filed with the court.

       Subd. 2.  Effective Date.  Intervention by the county agency is effective when the last person is served with the notice of intervention.

 

Rule 360.02  Other Individuals

 

       Subdivision 1.  Permissive Intervention.  Any person may be permitted to intervene as a party at any point in the proceeding if the child support magistrate finds that the person’s legal rights, duties, or privileges will be determined or affected by the case.

       Subd. 2.  Procedure.  A person seeking permissive intervention under subdivision 1 shall file with the court and serve upon all parties a motion to intervene.  The motion shall state:

(a)   how the person's legal rights, duties, or privileges will be determined or affected by the case;

(b)  how the person will be directly affected by the outcome of the case;

(c)   the purpose for which intervention is sought; and

(d)  any statutory grounds authorizing the person to intervene.

       Subd. 3.  Objection to Permissive Intervention.  Any existing party may file with the court and serve upon all parties and the intervenor a written objection within ten (10) days of service of the motion to intervene.

       Subd. 4.  Effective Date; Hearing.  If a written objection is not timely served and filed and the requesting party meets the requirements of subdivisions 1 and 2, the child support magistrate may grant the motion to intervene after considering the factors set forth in subdivision 2.  If written objection is timely served and filed, the child support magistrate may hold a hearing on the matter or may decide the issue without a hearing.  Intervention is effective as of the date granted.

 

Rule 360.03  Effect of Intervention

 

       The child support magistrate may conduct hearings, make findings, and issue orders at any time prior to intervention being accomplished or denied.  Prior proceedings and decisions of the child support magistrate are not affected by intervention.  Upon effective intervention the caption of the case shall be amended to include the name of the intervening party, which shall appear after the initial parties’ names.

 

RULE 361.  DISCOVERY

 

Rule 361.01  Witnesses

 

       Any party may call witnesses to testify at any hearing.  Any party intending to call a witness other than an employee of the county agency or any party to the proceeding shall, at least five (5) days before the hearing, provide to the other parties and the county agency written notice of the name and address of each witness.

 

Rule 361.02  Exchange of Documents

 

       Subdivision 1. Documents Required to be Provided Upon Request.  If a complaint or motion has been served and filed in the expedited process, a party may request any of the documents listed below.  The request must be in writing and served upon the appropriate party.  The request may be served along with the pleadings.  A party shall provide the following documents to the requesting party no later than ten (10) days from the date of service of the written request.

 

             (a) Verification of income, health/dental insurance costs and availability, child care costs, and expenses.

(b) Copies of last three months of pay stubs.

(c) A copy of last two years’ State and Federal income tax returns with all schedules and attachments, including Schedule Cs, W-2s and/or 1099s.

(d) Written verification of any voluntary payments made for support.

(e) Written verification of any other court-ordered child support obligations.

 

             Subd. 2. Remedies for Non-compliance.  If a party does not provide the documents, the party shall be prepared to explain the reason for the failure to the child support magistrate.  If the magistrate determines that the documents should have been provided, the magistrate may impose the remedies available in Rule 361.04.

             Subd. 3. Financial Statement.  If a complaint or motion has been served, any party may request in writing that a financial statement be completed by a party, other than a county agency, and submitted five (5) days prior to hearing, or if no hearing is scheduled, within ten (10) days from the request being served.  Failure to comply is subject to remedies under Rule 361.04.  Where a financial statement requests supporting documentation, it shall be attached.

             Subd. 4. Treatment of Confidential Information.  To retain privacy, restricted identifiers (e.g., social security numbers, employer identification numbers, financial account numbers) must be blackened out from any documents provided under this rule and may only be submitted on a separate Confidential Information Form as required in Rule 11 of these rules.  In addition, financial source documents (e.g., tax returns, wage stubs, credit card statements) must be submitted under a cover sheet entitled “Sealed Financial Source Documents” as required in Rule 11.

 

       (Amended effective July 1, 2006.)

 

Advisory Committee Comment

 

        Examples of documents that may be requested and exchanged include pay stubs, W-2 forms, signed tax returns, bank statements, utility bills, rental statement bills, loan payment statements, medical and dental bills, proof of medical insurance for dependents, child care expense statements from child care providers, and other documents relating to income, assets, or expenses.

      

Rule 361.03  Other Discovery

      

       Subdivision 1.  Motion for Discovery.  Any additional means of discovery available under the Minnesota Rules of Civil Procedure may be allowed only by order of the child support magistrate.  The party seeking discovery shall bring a motion before the child support magistrate for an order permitting additional means of discovery.  The motion shall include the reason for the request and shall notify the other parties of the opportunity to respond within five (5) days.  The party seeking discovery has the burden of showing that the discovery is needed for the party’s case, is not for purposes of delay or harassment, and that the issues or amounts in dispute justify the requested discovery. The motion shall be decided without a hearing unless the child support magistrate determines that a hearing is necessary. The child support magistrate shall issue an order granting or denying the discovery motion.  If the discovery motion is granted, the requesting party must serve the approved discovery requests upon the responding party and the discovery responses are due ten (10) days following service of the discovery request, unless otherwise ordered.

       Subd. 2.  Objections to Discovery.  If a party objects to discovery that party may serve and file a motion within five (5) days of service of discovery.  The motion may be decided without a hearing unless the child support magistrate determines that a hearing is necessary. 

 

       (Amended effective November 1, 2003.)

 

Rule 361.04 Discovery Remedies

 

       Subdivision 1.   Motions to Compel.  If a party fails to comply with an approved request for discovery or a request for documents under Rule 361.02, the party requesting the discovery may serve and file a motion for an order compelling an answer or compliance with the discovery request.  The motion shall notify the other parties of the opportunity to respond within five (5) days.  The motion shall be decided without a hearing unless the child support magistrate determines that a hearing is necessary. 

       Subd. 2.  Options Available to the Child Support Magistrate.  When deciding a discovery related motion or issue, or in the event a party fails to provide documents requested under Rule 361.02, the child support magistrate may:

(a)   order the parties to exchange specified documents or information;

(b)  deny the discovery request;

(c)   affirm, modify, or quash the subpoena;

(d)  issue a protective order;

(e)   set or continue the hearing;

(f)   conduct a hearing and keep the record open to allow for further exchange of information or response to the information provided at the hearing; or

(g)   order other discovery allowable under the Minnesota Rules of Civil Procedure, if appropriate.

       Subd. 2.  Failure to Comply with Discovery.  If a party fails to comply with an order issued pursuant to Rule 361.03, subd. 2, or Rule 361.04, the child support magistrate may:

(a)   find that the subject matter of the order for discovery or any other relevant facts shall be taken as established for the purposes of the case in accordance with the claim of the party requesting the order;

(b)  prohibit the non-compliant party from supporting or opposing designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; or

(c)   issue any other order that is appropriate in the interests of justice, including attorney fees or other sanctions.

 

       (Amended effective November 1, 2003.)

 

Rule 361.05 Filing of Discovery Requests and Responses Precluded

 

       Copies of a party’s request for discovery and any responses to those requests shall not be filed with the court unless:

(a)     ordered by the child support magistrate;

(b)     filed in support of any motion;

(c)     introduced as evidence in a hearing; or

(d)     relied upon by the magistrate when approving a stipulated or default order.

 

       To retain privacy, restricted identifiers (e.g., social security numbers, employer identification numbers, financial account numbers) must be blackened out from any documents provided under this rule and may only be submitted on a separate Confidential Information Form as required in Rule 11 of these rules.  In addition, financial source documents (e.g., tax returns, wage stubs, credit card statements) must be submitted under a cover sheet entitled “Sealed Financial Source Documents” as required in Rule 11.

 

       (Amended effective July 1, 2005.)

 

Rule 361.06 Subpoenas

 

       Subdivision 1.  Written Request.  Requests for subpoenas for the attendance of witnesses or for the production of documents shall be in writing and shall be submitted to the court administrator.  The request shall specifically identify any documents requested, include the full name and home or business address of all persons to be subpoenaed, and specify the date, time, and place for responding to the subpoena.  The court administrator shall issue a subpoena in accordance with Minn. R. Civ. P. 45.  The party requesting the subpoena shall fill out the subpoena before having it served.  An attorney as officer of the court may also issue and sign a subpoena on behalf of the court where the action is pending.

       Subd. 2.  Service of Subpoenas Shall be by Personal Service.  All subpoenas shall be personally served by the sheriff or by any other person who is at least 18 years of age who is not a party to the action.  Employees of the county agency may personally serve subpoenas.  The person being served shall, at the time of service, be given the fees and mileage allowed by Minn. Stat. § 357.22 (2000).  When the subpoena is requested by the county agency, fees and mileage need not be paid.  The cost of service, fees, and expenses of any witnesses who have been served subpoenas shall be paid by the party at whose request the witness appears.  The person serving the subpoena shall provide proof of service by filing the original subpoena with the court, along with an affidavit of personal service.

       Subd. 3.  Objection to Subpoena.  Any person served with a subpoena who objects to the request shall serve upon the parties and file with the court an objection to subpoena.  The party objecting shall state on the objection to subpoena why the request is unreasonable or oppressive.  The objection to subpoena shall be filed promptly and no later than the time specified in the subpoena for compliance.  A child support magistrate shall cancel or modify the subpoena if it is unreasonable or oppressive, taking into account the issues or amounts in controversy, the costs or other burdens of compliance when compared with the value of the testimony or evidence requested, and whether there are alternative methods of obtaining the desired testimony or evidence.  Modification may include requiring the party requesting the subpoena to pay reasonable costs of producing documents, books, papers, or other tangible things.

 

       (Amended effective January 1, 2006.)

 

Civil Rules Advisory Committee Comment—2006 Amendment

 

Rule 361.06 is amended, effective January 1, 2006, to conform the subpoena provisions to the parallel procedures of Minn. R. Civ. P. 45, which is amended at the same time.

 

Rule 362.  Settlement

 

Rule 362.01  Procedure

 

       The parties may settle the case at any time before a hearing or, if no hearing is scheduled, before an order is issued. Alternative dispute resolution, as provided in Minn. Gen. R. Prac. 310, and settlement efforts, as provided in Minn. Gen. R. Prac. 303, do not apply to cases brought in the expedited process.

 

Rule 362.02  Signing of Order

 

       Subdivision 1.  Preparation and Signing.  If the parties reach an agreement resolving all issues, one of the parties shall prepare an order setting forth the terms of the agreement.  If the parties are not represented by counsel and the county agency is a party, the county agency shall prepare the order.  All parties to the agreement, including the county agency, shall sign the original order.  The order shall state that the parties have:

(a)   waived the right to a hearing;

(b)  waived the right to counsel where a party is not represented by counsel; and

(c)   received and reviewed all documents used to prepare the order.

       Subd. 2.  Filing.  The original order signed by all parties shall be filed with the court, who shall submit it to the child support magistrate for review and signature.

 

Rule 362.03  Order Accepted

      

       The child support magistrate may sign an order filed pursuant to Rule 362.02 if it is supported by law, and is reasonable and fair. 

 

Rule 362.04  Order Not Accepted

 

       The child support magistrate may reject an order filed pursuant to Rule 362.02 if the child support magistrate finds that it is contrary to law, or is unreasonable and unfair.  If the child support magistrate rejects the order, the child support magistrate shall prepare a notice of deficiency, stating the reason(s) why the order cannot be signed.  The notice of deficiency shall inform the parties of the following options:

(a)   to file and serve any missing documents;

(b)  to file and serve a revised order;

(c)   to file and serve a revised order and attach any missing or additional documents;

(d)  to appear at a hearing, notice of which shall be issued by the court administrator;

(e)   to appear at the previously scheduled hearing; or

(f)   to withdraw the matter without prejudice.

The court administrator shall mail the notice of deficiency to the parties.  The parties shall either correct the deficiency or set the case on for a hearing and serve notice of the date, time, and location of the hearing pursuant to Rule 364.  In matters that are pending before the court, if the parties fail to comply with the notice of deficiency within forty-five (45) days of the date the notice was mailed, the child support magistrate shall dismiss the matter without prejudice.

A stipulation or agreement shall be rejected where no underlying file exists.  Neither the parties nor the child support magistrate may schedule a hearing without a party first serving and filing a summons and complaint or notice of motion and motion.

 

Advisory Committee Comment

 

        After an order or a judgment and decree is issued, at a later date parties sometimes amicably agree to modify the order.  These agreements are often reached without the serving and filing of any papers.  Under such circumstances, the parties are required to reduce the agreement to writing in the form of a stipulation and order which a child support magistrate may accept or reject.  If the stipulation and order is rejected, and there is no underlying file, the matter may not be set for hearing until such time as a complaint is filed thus giving the court jurisdiction over the parties.

 

RULE 363.  DEFAULT

 

Rule 363.01  Scope

 

       The default procedure set forth in this rule applies to actions to establish support under Minn. Stat. § 256.87 (2000) (Rule 370) and proceedings to modify support or set support (Rule 372). 

 

Rule 363.02  Procedure

 

       The initiating party may proceed by default if:

(a)     all noninitiating parties have been properly served with the summons or notice of motion;

(b)     the summons or notice of motion did not contain a hearing date; and

(c)     there has been no written answer or return of the request for hearing form from any party within twenty (20) days from the date the last party was served. 

The initiating party shall file an order with the court within forty-five (45) days from the date the last noninitiating party was served with the summons and complaint or notice of motion and motion.  The initiating party shall also file with the court a current affidavit of default and a current affidavit of non-military status.  If an order is not filed with the court within forty-five (45) days, the court administrator shall mail a notice to all parties that the matter shall be scheduled for hearing unless the initiating party files an order along with all necessary documents within ten (10) days from the date notice was mailed.  If the initiating party fails to file the necessary documents within the allotted ten (10) days, the court administrator shall set the matter on for hearing and serve upon all parties and the county agency by U.S. mail at least fourteen (14) days before the scheduled hearing, notice of the date, time, and location of the hearing.

 

Rule 363.03  Order Accepted

      

       The child support magistrate may sign an order filed pursuant to Rule 363.02 if the child support magistrate finds that it is supported by law, is reasonable and fair, and that each noninitiating party:

(a)     was properly served with the summons and complaint or notice of motion and motion;

(b)     was notified of the requirement to either serve and file a written answer or return the request for hearing form within twenty (20) days of service of the summons and complaint or notice of motion and motion; and

(c)     failed to serve and file a written answer or return the request for hearing form within twenty (20) days from the date of service.

 

Rule 363.04  Order Not Accepted

      

       The child support magistrate may reject an order filed pursuant to Rule 363.02 if the child support magistrate finds the order contrary to law, or unreasonable and unfair.  If the child support magistrate rejects the order, the child support magistrate shall prepare a notice of deficiency, stating the reason(s) why the order cannot be signed.  The notice of deficiency shall inform the initiating party of the following options:

(a)   to file and serve any missing documents;

(b)  to file a revised order;

(c)   to file a revised order and attach any missing or additional documents;

(d)  to appear at a hearing, notice of which shall be issued by the court administrator to all parties;

(e)   to appear at any previously scheduled hearing; or

             (f)  to withdraw the matter without prejudice.

The court administrator shall mail the notice of deficiency to the initiating party.  The initiating party shall either correct the deficiency or set the case on for a hearing and serve notice of the date, time, and location of the hearing upon all parties pursuant to Rule 364.  If the initiating party submits a revised order that raises new issues beyond the scope of the complaint or motion, amended pleadings shall be served and filed on all parties pursuant to Rule 370.06 or Rule 372.06.  If the initiating party fails to schedule a hearing or comply with the notice of deficiency within forty-five (45) days of the date the notice was mailed, the child support magistrate shall dismiss the matter without prejudice.

 

RULE 364.  HEARING PROCESS

 

Rule 364.01  Right to Hearing

 

       Any party has a right to a hearing unless otherwise stated in these rules.

 

Rule 364.02  Scheduling of Hearing

 

       The initiating party shall schedule a hearing if a written answer or a request for hearing form is received.  The initiating party shall contact the court administrator or the court administrator’s designee to obtain a hearing date and shall serve upon all parties and the county agency by United States mail at least fourteen (14) days before the scheduled hearing, notice of the date, time, and location of the hearing.

 

Rule 364.03  Timing of Hearing

 

       In the event the parties are unable to resolve the matter, a hearing shall be held no sooner than twenty (20) days after service of the summons and complaint or notice of motion and motion, unless the time period is waived by the parties.  Every effort shall be made to conduct the hearing no later than sixty (60) days after service of the summons and complaint or notice of motion and motion on the last person served or, in an establishment of parentage case, no later than sixty (60) days after receipt of the genetic test results.  If conducted later than sixty (60) days, the court administrator shall report that fact to the chief judge of the judicial district.  Conducting a hearing later than sixty (60) days after service or receipt of blood or genetic test results does not deprive the child support magistrate of jurisdiction.

 

Advisory Committee Comment

 

Federal law requires 75% of cases commenced in the Expedited Process to be completed within 6 months from the date of service of process and 90% of the cases to be completed within 12 months from the date of service of process.  45 C.F.R. § 303.101 (2000).  If the hearing is initially scheduled within 60 days under Rule 364.03 and is later continued to beyond 60 days, that fact must be reported to the chief judge of the judicial district.

 

Rule 364.04  Notice of Hearing

 

       A notice of the hearing shall: 

(a)     state the name of the court;

(b)     state the names of the parties;

(c)     state the date, time, and location of the hearing;

(d)  state that the parties shall appear at the hearing, unless otherwise provided in these rules;

(e)   inform the parties of the requirement to bring to the hearing sufficient copies of all documents the parties intend to offer; and

(f)   if possible, include the name of the child support magistrate assigned to the case.

 

Rule 364.05  Continuance of Hearing

 

       Upon agreement of the parties or a showing of good cause, the child support magistrate may grant a request for continuance of a hearing.  An order granting a continuance may be stated orally on the record or may be in writing.  Unless time does not permit, a request for continuance shall be made in writing, and shall be filed with the court and served upon all parties at least five (5) days before the hearing.  In determining whether good cause exists, due regard shall be given to the ability of the party requesting a continuance to effectively proceed without a continuance.

 

Advisory Committee Comment

 

        Rule 364.05 provides that a continuance may be granted for good cause.  Examples of good cause include: death or incapacitating illness of a party or attorney of a party; lack of proper notice of the hearing; a substitution of the attorney of a party; a change in the parties or pleadings requiring postponement; an agreement for a continuance by all parties provided that it is shown that more time is clearly necessary.  Good cause does not include: intentional delay; unavailability of counsel due to engagement in another judicial or administrative proceeding unless all other members of the attorney’s firm familiar with the case are similarly engaged, or if the notice of the other proceeding was received prior to the notice of the hearing for which the continuance is sought; unavailability of a witness if the witness’ testimony can be taken by deposition; and failure of the attorney to properly utilize the statutory notice period to prepare for the hearing.

 

Rule 364.06  Explanation of Hearing Purpose and Procedure

 

       At the beginning of each hearing the child support magistrate shall explain the purpose of the hearing and the process and procedures to be used during the hearing.

 

Rule 364.07  Hearings Open to Public

 

       All hearings are open to the public, except as otherwise provided in these rules or by statute.  For good cause shown, a child support magistrate may exclude members of the public from attending a hearing.

 

Advisory Committee Comment

 

        Under Minn. Stat. § 257.70 (2000), hearings regarding the establishment of parentage are closed to the public.  Other proceedings identified in Rule 353.01 are generally open to the public.

 

Rule 364.08  Record of Hearing

 

       Each child support magistrate shall ensure that an accurate record is made of each hearing over which the magistrate presides.

 

Advisory Committee Comment

       Under Minn. Stat. § 484.72, subds. 1, 6 (2000), records of hearings and other proceedings in the expedited process may be made either by competent stenographers or by use of electronic recording equipment.  (1999 Minn. Laws 196, art. 1, § 3.)  If electronic recording equipment is used, it must meet the minimum standards promulgated by the state court administrator and must be operated and monitored by a person who meets the minimum qualifications promulgated by the state court administrator.  The minimum standards are set forth in Minnesota State Court System Administrative Policy, dated June 29, 1999.

 

Rule 364.09  Right to Present Evidence

 

       Subdivision 1.  Generally.  Each party may present evidence, rebuttal testimony, and argument with respect to the issues.

       Subd. 2.  Testimony and Documents Permitted.  Evidence may be presented through documents and testimony of the parties or other witnesses.  Testimony may be given in narrative fashion by witnesses or by question and answer.  Any party may be a witness and may present witnesses.  All oral testimony shall be under oath or affirmation.  The child support magistrate may exclude witnesses from the hearing room so that they cannot hear the testimony of other witnesses.  In any proceeding, a sworn written affidavit of any party or witness may be offered in lieu of oral testimony.

       Subd. 3.  Necessary Preparation Required.  The parties shall exchange copies of documents five (5) days before the hearing.  If the exchange is not completed within the required time frame, each party shall bring to the hearing all evidence, both oral and written, the party intends to present.  Each party must have enough copies of each exhibit the party intends to offer so that a copy can be provided to all other parties and the child support magistrate at the time of the hearing.  The child support magistrate shall have the discretion in determining whether evidence that was not timely exchanged prior to the hearing should or should not be admitted into evidence.

 

       (Amended effective November 1, 2003.)

 

Rule 364.10  Evidence

 

       Subdivision 1.  Type of Evidence Admissible.  The child support magistrate may admit any evidence that possesses probative value, including hearsay, if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs.  The child support magistrate shall give effect to the rules of privilege recognized by law.  Evidence that is not related to the issue of support, is unimportant to the issue before the magistrate, or that repeats evidence that has already been provided shall not be allowed.

       Subd. 2.  Evidence Part of Record.  All pleadings and supporting documentation previously served upon the parties and filed with the court, unless objected to, may be considered by the magistrate.  Only evidence that is offered and received during the hearing or submitted following the hearing with the permission of the child support magistrate may be considered in rendering a decision, including, but not limited to, testimony, affidavits, exhibits, and financial information.

       Subd. 3.  Documents.  Ordinarily, copies or excerpts of documents instead of originals may be received or incorporated by reference.  The child support magistrate may require the original or the complete document if the copy is not legible, there is a genuine question of accuracy or authenticity, or if it would be unfair to admit the copy instead of the original.  Any financial documents prepared by the employee of the county agency are admissible without requiring foundation testimony or appearance of the employee of the county agency.

       Subd. 4.  Notice of Facts.  The child support magistrate may take judicial notice of facts not subject to reasonable dispute, but shall do so on the record and with the opportunity for any party to contest the facts so noticed.

 

Rule 364.11  Burden of Proof

 

       The party proposing that certain action be taken shall prove the facts at issue by a preponderance of the evidence, unless the substantive law provides a different burden or standard.  A party asserting an affirmative defense has the burden of proving the existence of the defense by a preponderance of the evidence.

 

Rule 364.12  Examination of Adverse Party

 

       A party may call an adverse party or any witness for an adverse party, and may ask leading questions, cross-examine, and impeach that adverse party or witness.

 

Rule 364.13  Role of Child Support Magistrate

 

       A child support magistrate may ask questions of witnesses when needed to ensure sufficient evidence to make the required findings.

 

Rule 364.14  Discretion to Leave Record Open

 

       At the conclusion of a hearing, the child support magistrate may leave the record open and request or permit submission of additional documentation.  Unless otherwise ordered by the child support magistrate, such additional documentation shall be submitted to the court within ten (10) days of the conclusion of the hearing.  Documents submitted after the due date or without permission of the child support magistrate shall be returned to the sender and shall not be considered by the child support magistrate when deciding the case. 

 

Rule 364.15  Close of Record

 

       The record shall be considered closed either at the conclusion of the hearing or upon the expiration date for submission by the parties of any additional documentation authorized or requested by the child support magistrate, whichever is later.  At the close of the record, the child support magistrate shall issue a decision and order pursuant to Rule 365.

 

RULE 365.  DECISION AND ORDER OF CHILD SUPPORT MAGISTRATE

 

Rule 365.01  Failure to Attend Hearing

 

       If a party fails to appear at a hearing for which notice was properly served, the child support magistrate may:

(a)     decide all issues and issue an order without further notice or hearing;

(b)     dismiss the matter without prejudice; or

(c)     continue the hearing.

 

Rule 365.02  Timing

 

       Within thirty (30) days of the close of the record the child support magistrate shall file with the court a decision and order.  The child support magistrate may serve the order upon the parties at the hearing.

 

Rule 365.03  Effective Date; Final Order

 

       Except as otherwise provided in these rules, the decision and order of the child support magistrate is effective and final when signed by the child support magistrate.

 

Rule 365.04  Notice of Filing of Order or Notice of Entry of Judgment

 

       Subdivision 1.  Service by Court Administrator.  Within five (5) days of receipt of the decision and order of the child support magistrate the court administrator shall serve a notice of filing of order or notice of entry of judgment upon each party by U.S. mail, together with a copy of the order or judgment if a copy of the order was not served at the hearing.  The court administrator shall use the notice of filing form prepared by the state court administrator which shall set forth the information required in subdivision 2.

       Subd. 2.  Content of Notice.  The notice required in subdivision 1 shall include information regarding the:

(a)   right to bring a motion to correct clerical mistakes pursuant to Rule 375;

(b)  right to bring a motion for review of the decision and order of the child support magistrate pursuant to Rule 376;

(c)   right to appeal a final order or judgment of the child support magistrate directly to the court of appeals pursuant to Rule 378;

(d)  right of other parties to respond to motions to correct clerical mistakes, motions for review, and appeals pursuant to Rules 377 and 378; and

(e)   authority of the child support magistrate to award costs and fees if the magistrate determines that a motion to correct clerical mistakes or a motion for review is not made in good faith or is brought for purposes of delay or harassment pursuant to Rule 377.09, subd. 6.

       Subd. 3.  Court Administrator Computes Dates.  The court administrator shall compute, and set forth in the notice required in subdivision 1, the last day for bringing a motion for review and the last day for bringing any response to such motion.

 

Advisory Committee Comment

 

        Timing and Procedure for Bringing Motions.  The timing for bringing a motion for review differs from the timing for bringing an appeal to the court of appeals.  Under Rule 377.02, the time within which to bring a motion for review is twenty (20) days, which begins to run on the date the court administrator serves the notice of filing of order or notice of entry of judgment.

        Timing and Procedure for Bringing an Appeal to Court of Appeals.  Rule 104.01 of the Minnesota Rules of Civil Appellate Procedure provides that the time within which to bring an appeal to the court of appeals is sixty (60) days which begins to run on the date of service by any party upon any other party of written notice of the filing of the order or entry of the judgment.  The Advisory Committee intends that Rule 378.01 supersede Minn. R. Civ. App. P. 104.01 to provide that the sixty (60) days begins to run on the date the court administrator serves the written notice of filing of the order or notice of entry of judgment.

        Options For Review and Appeal.  A party may choose to bring a motion to correct clerical mistakes, a motion for review, or a combined motion, or may choose to appeal directly to the court of appeals thus bypassing the first two options.  However, if a party chooses the option of appealing directly to the court of appeals without first bringing a motion for review, such an appeal will be limited to determining whether the evidence sustains the findings of fact (to which the “clearly erroneous” standard of review applies) and whether the findings support the conclusions of law and the judgment.  Kahn v. Tronnier, 547 N.W.2d 425, 428 (Minn. App.), rev. denied (Minn. July 10, 1996).  Thus, although a motion for review is very important to obtaining the broadest possible appellate review, it is not an absolute prerequisite to appeal; a litigant can choose to file a direct appeal from the order of the child support magistrate, but the appeal will be limited to issues within that narrower scope of review.

 

RULE 366.  TRANSCRIPT

 

Rule 366.01  Ordering of Transcript

 

       Subdivision 1.  Informational  Request.  Any person may request a transcript of any proceeding held before a child support magistrate, except as prohibited by statute or rule, by filing a request for transcript form with the court.  The person requesting the transcript must make satisfactory arrangements for payment with the transcriber within thirty (30) days of ordering the transcript or the request for the transcript shall be deemed cancelled. The person requesting the transcript may withdraw the request any time prior to the time transcription has begun.  The transcriber shall file the original with the court and serve a copy upon the requesting person.  The transcriber shall also file with the court an affidavit of service verifying that service has been made upon the requesting person. 

       Subd. 2.  Clerical or Review Requests.  If a party chooses to request a transcript for purposes of bringing or responding to a motion to correct clerical mistakes, a motion for review, or a combined motion, a request for transcript form shall be filed with the court within the time required under Rule 377.02 and 377.04.  The party requesting the transcript must make satisfactory arrangements for payment with the transcriber within thirty (30) days of ordering the transcript or the request for the transcript shall be deemed cancelled. The requesting party may withdraw that party’s request for a transcript any time prior to the time transcription has begun. The transcriber shall file the original with the court and serve each party, including the county agency if a party, with a copy.  The transcriber shall also file with the court an affidavit of service verifying that service has been made upon all parties.  Ordering and filing of a transcript does not delay the due dates for the submissions described in Rule 377.02 and Rule 377.04. Filing of the transcript with the court closes the record for purposes of Rule 377.09, subd. 1.

Subd. 3.  Appellate Request.  If the transcript request is for appellate review, the transcriber shall comply with all appellate rules.

 

RULE 367.        ADMINISTRATION OF EXPEDITED CHILD SUPPORT PROCESS; CHILD SUPPORT MAGISTRATES

 

Rule 367.01  Administration of Expedited Process

 

       The chief judge of each judicial district shall determine whether the district will administer the expedited process within the judicial district in whole or in part, or request that the state court administrator administer the expedited process in whole or in part for the district.

 

Advisory Committee Comment

 

        Rule 367.01 does not permit a judicial district to opt out of the expedited process.  Rather, Rule 367.01 simply indicates that the chief judge of the district must decide who will be responsible for administering the expedited process within each judicial district.

 

Rule 367.02  Use and Appointment of Child Support Magistrates

 

       The chief judge of each judicial district shall determine whether the district will use child support magistrates, family court referees, district court judges, or a combination of these individuals to preside over proceedings in the expedited process. The chief judge of each judicial district, with the advice and consent of the judges of the district, shall appoint each child support magistrate, except family court referees and district court judges, subject to confirmation by the Supreme Court.   Each child support magistrate serves at the pleasure of the judges of the judicial district.  Child support magistrates may be appointed on a full time, part time, or contract basis. 

 

Advisory Committee Comment

        Nothing in these rules precludes a family court referee or district court judge from serving in the capacity of a child support magistrate.

 

Rule 367.03  Powers and Authority

 

       Child support magistrates shall have the powers and authority necessary to perform their duties in the expedited process pursuant to statute and rule.

 

Advisory Committee Comment

 

        It is the intent of the Committee that child support magistrates have the authority to decide all issues permitted in the expedited process, including, but not limited to, awarding and modifying tax dependency exemptions, awarding costs and attorneys fees, and issuing orders or diret contempt, and issuing orders  to show cause.

 

Rule 367.04  Conflict of Interest

 

       Subdivision 1.  Generally.  A child support magistrate shall not serve as:

(a)   an attorney in any family law matter within any county in which the person serves as a child support magistrate; or

(b)  a guardian ad litem in any family law matter, as defined in the comment to Minn. Gen. R. Prac.  901.01, in any county in which the person serves as a child support magistrate.

       Subd. 2.  Disqualification.  The disqualifications listed in subdivision 1 shall not be imputed to other members of a child support magistrate's law firm.

 

Rule 367.05  Code of Judicial Conduct

 

       Each child support magistrate is bound by the Minnesota Code of Judicial Conduct.  The exceptions set forth in the Application of the Minnesota Code of Judicial Conduct relating to part-time judges apply to child support magistrates appointed on a part-time or contract basis.

 

Advisory Committee Comment

 

        A comment to the Application Section of the Minnesota Code of Judicial Conduct provides that “anyone, whether or not a lawyer, who is an officer of a judicial system and who performs judicial functions, including an officer such as a referee, special master or magistrate” is a judge within the meaning of the Minnesota Code of Judicial Conduct.

 

Rule 367.06  Impartiality

 

       Each child support magistrate shall conduct each hearing in an impartial manner and shall serve only in those matters in which the magistrate can remain impartial and evenhanded.  If at any time a child support magistrate is unable to conduct any proceeding in an impartial manner, the magistrate shall withdraw.

 

RULE 368.  REMOVAL OF A PARTICULAR CHILD SUPPORT MAGISTRATE

 

Rule 368.01  Automatic Right to Remove Precluded

 

       No party has an automatic right to remove a child support magistrate, family court referee, or district court judge presiding over matters in the expedited process, including motions to correct clerical mistakes under Rule 375 and motions for review under Rule 376.

 

Rule 368.02  Removal for Cause

 

       Subdivision 1.  Procedure.  Any party may serve upon the other parties and file with the court a request to remove the child support magistrate assigned to hear the matter.  If the assigned child support magistrate denies the request to remove, upon written request the chief judge of the judicial district shall determine whether cause exists to remove the assigned child support magistrate.  If the chief judge of the judicial district is the subject of the request to remove, the assistant chief judge shall determine whether cause exists to remove the child support magistrate.  A request to remove shall be filed with the court and served upon the parties within ten (10) days of service of notice of the name of the magistrate assigned to hear the matter or within ten (10) days of discovery of prejudice.  If assignment of a child support magistrate is made less than ten (10) days before the hearing, the request to remove shall be made as soon as practicable after notice of assignment is given.

       Subd. 2.  Grounds to Remove.  Removal of a child support magistrate requires an affirmative showing of prejudice.  A showing that the child support magistrate might be excluded for bias from acting as a juror in the matter constitutes an affirmative showing of prejudice.

 

RULE 369.  ROLE OF COUNTY ATTORNEY AND EMPLOYEES OF THE COUNTY AGENCY

 

Rule 369.01  Role of County Attorney

 

       Subdivision 1.  Approval as to Form and Content.  The county attorney shall review and approve as to form and content all legal documents prepared by employees of the county agency for use in the expedited process or in district court.

       Subd. 2.  Attendance at Hearings.  The county agency shall appear through counsel.  However, the county attorney may authorize an employee of the county agency to appear on behalf of the county attorney to present an agreement or stipulation reached by all the parties.  An employee of the county agency shall not advocate a position on behalf of any party.  The county attorney is not required to be present at any hearing to which the county agency is not a party.

 

Rule 369.02  Role of Employees of County Agency

 

       Subdivision 1.  County Attorney Direction.  Under the direction of, and in consultation with, the county attorney, and consistent with Rules 5.3 and 5.5 of the Minnesota Rules of Professional Conduct, employees of the county agency may perform the following duties:

(a)     meet and confer with parties by mail, telephone, electronic, or other means regarding legal issues;

(b)     explain to parties the purpose, procedure, and function of the expedited child support process and the role and authority of nonattorney employees of the county agency regarding legal issues;

(c)     prepare pleadings, including, but not limited to, summonses and complaints, notices, motions, subpoenas, orders to show cause, proposed orders, administrative orders, and stipulations and agreements;

(d)     issue administrative subpoenas;

(e)     prepare judicial notices;

(f)      negotiate settlement agreements;

(g)     attend and participate as witnesses in hearings and other proceedings, and if requested by the child support magistrate, present evidence, agreements and stipulations of the parties, and any other information deemed appropriate by the magistrate;

(h)     participate in such other activities and perform such other duties as delegated by the county attorney; and

(i)       exercise other powers and perform other duties as permitted by statute or these rules.

Employees of the county agency shall not represent the county agency at hearings conducted in the expedited process.

       Subd. 2.  Support Recommendations Precluded.  Employees of the county agency may not offer recommendations regarding support at the hearing unless called as a witness at the hearing. Computation and presentation of support calculations are not considered recommendations as to support.     

       Subd. 3.  County Attorney Direction Not Required.  Without direction from the county attorney, employees of the county agency may perform the duties listed under Minn. Stat. § 518.5513, subd. 2(c) (2000).  In addition, employees of the county agency may testify at hearings at the request of a party or the child support magistrate.

       Subd. 4.  Performance of Duties Not Practice of Law.  Performance of the duties identified in Rule 369.02 by employees of the county agency does not constitute the unauthorized practice of law for purposes of these rules or Minn. Stat. § 481.02 (2000).

 

2.      PROCEEDINGS

 

RULE 370.  ESTABLISHMENT OF SUPPORT PROCEEDINGS

 

Rule 370.01  Commencement

 

       An initial proceeding to establish support shall be commenced in the expedited process by service of a summons and complaint pursuant to Rule 370.03.  If the summons does not contain a hearing date, a request for hearing form and a supporting affidavit shall be attached to the summons and complaint.  In addition to service of the summons and complaint, an order to show cause may be issued pursuant to Minn. Gen. R. Prac. 303.05.  Service shall be made at least twenty (20) days prior to any scheduled hearing.

 

Rule 370.02  Content of Summons, Complaint, Supporting Affidavit, and Request for Hearing Form

 

       Subdivision 1.  Content of Summons.  A summons shall:

(a)     state the name of the court;

(b)     state the names of the parties;

(c)     state an address where the initiating party may be served;

(d)     state that the purpose of the action is to establish support;

(e)     either set a hearing date or attach a request for hearing form;

(f)      provide information about serving and filing a written response pursuant to Rule 370.04 and Rule 370.05;

(g)   state that all parties shall appear at the hearing if one is scheduled, and state that if any party fails to appear at the hearing the child support magistrate shall proceed pursuant to Rule 365.01;

(h)  state that the child support magistrate may sign a default order pursuant to Rule 363.03;

(i)   state that a party has the right to representation pursuant to Rule 357

(j)   state that the case may be settled informally by contacting the initiating party, and include the name, address, and telephone number of the person to contact to discuss settlement; and

(k)  be signed by the initiating party or that party’s attorney. 

 

       If there is reason to believe that domestic violence exists or if an order for protection has been issued, the party may provide an alternative address and telephone number.  Pursuant to Minn. Stat. § 518.005, subd. 5 (2000), in all actions in which public assistance is assigned or the county agency is providing services to a party or parties to the action, information regarding the location of one party may not be released by the county agency to any other party if the county agency has knowledge that a protective order with respect to the other party has been entered or has reason to believe that the release of the information may result in physical or emotional harm to the other party.

       Subd. 2.  Content of Complaint.  A complaint shall:

(a)   state the relief the initiating party wants the child support magistrate to order;

(b)  state the facts and grounds supporting the request for relief;

(c)   set forth the acknowledgement required under Rule 379.04; and

(d)     be signed by the initiating party or that party’s attorney.

       Subd. 3.  Content of Supporting Affidavit.  A supporting affidavit is required when the summons does not contain a hearing date.  The supporting affidavit shall:

(a)   state detailed facts supporting the request for relief;

(b)  provide all information required by Minn. Stat. § 518.5513, subd. 3(a) (2000), if known; and

(c)   be signed and sworn to under oath.

 

Advisory Committee Comment

 

                    Pursuant to Minn. Stat. § 518.5513, subd. 3(a), for all cases involving establishment or modification of support, the pleadings are to contain specific information.  At times, it may be necessary to attach additional supporting documents.  Each county should establish its own local policy regarding the attachment of supporting documents. 

 

       Subd. 4.  Content of Request for Hearing Form.   A request for hearing form shall contain the name and address of the initiating party and a short, concise statement that a noninitiating party requests a hearing. 

 

Rule 370.03  Service of Summons and Complaint

 

       Subdivision 1.  Who is Served.  All parties, and the county agency even if not a party, shall be served pursuant to subdivision 2.

       Subd. 2.  How Served.  The summons and complaint, and if required the supporting affidavit and request for hearing form, shall be served upon the parties by personal service, or alternative personal service, pursuant to Rule 355.02, unless personal service has been waived in writing.  Where the county agency is the initiating party, the party who is receiving assistance from the county or who has applied for child support services from the county may be served by any means permitted under Rule 355.02.

 

Rule 370.04  Filing Requirements

 

       Subdivision 1.  Initiating Party.  No later than five (5) days before any scheduled hearing or, if no hearing is scheduled, within fourteen (14) days from the date the last party was served, the initiating party shall file the following with the court:

(a)   the original summons;

(b)  the original complaint;

(c)   the original supporting affidavit, if served;

(d)  the request for hearing form, if returned to the initiating party; and

(e)   proof of service upon each party pursuant to Rule 355.04.

       Subd. 2.  Responding Party.  If a noninitiating party responds with a written answer pursuant to Rule 370.05, the following shall be filed with the court no later than five (5) days before any scheduled hearing or, if no hearing is scheduled, within fourteen (14) days from the date the last party was served:

(a)   the original written answer; and

(b)  proof of service upon each party pursuant to Rule 355.04.

       Subd. 3.  Facsimile Transmission.  If a paper is filed by facsimile, the sender’s original must not be filed but must be maintained in the files of the party transmitting it for filing and made available to the court or any party to the action upon request.

       Subd. 4.  Treatment of Confidential Information.  To retain privacy, restricted identifiers (e.g., social security numbers, employer identification numbers, financial account numbers) must be blackened out from any documents provided under this rule and may only be submitted on a separate Confidential Information Form as required in Rule 11 of these rules.  In addition, financial source documents (e.g., tax returns, wage stubs, credit card statements) must be submitted under a cover sheet entitled “Sealed Financial Source Documents” as required in Rule 11.

 

               (Amended effected January  1, 2006.)

 

Rule 370.05  Response

 

       Subdivision 1.  Hearing Date in Summons.  Inclusion of a hearing date does not preclude a noninitiating party from serving and filing a written answer.  Within twenty (20) days from service of the summons and complaint, a noninitiating party may serve upon all parties a written answer to the complaint.  The service and filing of a written answer or the failure of a noninitiating party to appear at a hearing does not preclude the hearing from going forward, and the child support magistrate may issue an order based upon the information in the file or evidence presented at the hearing. 

       Subd. 2.  Hearing Date Not in Summons.  If the summons does not contain a hearing date, within twenty (20) days from service of the summons and complaint, a noninitiating party shall either:

(a)  request a hearing by returning the request for hearing form to the initiating party; or

(b)  serve upon all other parties and file with the court a written answer to the complaint. 

The initiating party shall schedule a hearing upon receipt of the request for hearing form or the service of a written answer.

 

Rule 370.06  Amended Pleadings

 

       Subdivision 1.  Service.  At any time up to ten (10) days before a scheduled hearing, the initiating party may serve and file amended pleadings.  If no hearing date has been scheduled, the initiating party may serve and file amended pleadings within the time remaining for response.

       Subd. 2.  Response.  If the noninitiating party chooses to respond to amended pleadings, the response must be made within the time remaining for response to the original pleading or within ten (10) days after service of the amended pleadings, whichever period is longer, unless the court otherwise orders.

 

Rule 370.07  Fees

 

       A filing fee shall be paid pursuant to Rule 356 upon the filing of:

(a)     the summons and complaint; and

(b)     the written answer, if any.

 

Rule 370.08  Settlement Procedure

 

       The parties may settle the case at any time pursuant to Rule 362

 

Rule 370.09  Default Procedure

 

       An action to establish support may proceed by default pursuant to Rule 363.

 

Rule 370.10  Hearing Procedure

 

       Any hearing shall proceed pursuant to Rule 364.  If the summons contains a hearing date, all parties shall appear at the hearing.  If a party fails to appear at a hearing for which notice was properly served, the child support magistrate shall proceed pursuant to Rule 365.01.

 

Rule 370.11  Decision and Order

 

       The decision and order of the court shall be issued pursuant to Rule 365.

 

Rule 370.12  Review and Appeal

 

       Motions to correct clerical mistakes, if any, shall proceed pursuant to Rule 375.  Review, if any, shall proceed pursuant to Rule 376.  Appeal, if any, shall proceed pursuant to Rule 378

 

RULE 371.  PARENTAGE ACTIONS

 

Rule 371.01  Commencement

 

       A proceeding to establish parentage shall be commenced in the expedited process by service of a summons and complaint pursuant to Rule 371.03.  A supporting affidavit may also be served.  Unless blood or genetic testing has already been completed, a request for blood or genetic testing shall be served with the summons and complaint.  In addition to service of the summons and complaint, an order to show cause may be issued pursuant to Minn. Gen. R. Prac. 303.05.  Service shall be completed at least twenty (20) days prior to any scheduled hearing.

 

Rule 371.02  Content of Summons, Complaint, and Supporting Affidavit

 

       Subdivision 1.  Content of Summons.  A summons shall:

(a)     state the name of the court;

(b)  state the names of the parties;

(c)   state an address where the initiating party may be served;

(d)  state that the purpose of the action is to establish parentage;

(e)   state the date, time, and location of the hearing;

(f)   provide information about serving and filing a written response pursuant to Rule 371.04 and Rule 371.05;

(g)   state that all parties shall appear at the hearing, and if any party fails to appear at the hearing the child support magistrate shall proceed pursuant to Rule 365.01;

(h)  state that a party has the right to representation pursuant to Rule 357;

                  (i)    state that the case may be settled informally by contacting the initiating party and include the name, address, and telephone number of the person to contact to discuss settlement; and

(j)   be signed by the initiating party or that party’s attorney. 

If there is reason to believe that domestic violence exists or if an order for protection has been issued, a party may provide an alternative address and telephone number.  Pursuant to Minn. Stat. § 257.70(b) (2000), in all actions in which public assistance is assigned or the county agency is providing services to a party or parties to the action, information regarding the location of one party may not be released by the county agency to any other party if the county agency has knowledge that a protective order with respect to the other party has been entered or has reason to believe that the release of the information may result in physical or emotional harm to the other party.

       Subd. 2.  Content of Complaint.  A complaint shall:

(a)  state the relief the initiating party wants the child support magistrate to order;

(b) state the facts and grounds supporting the request for relief;

             (c)  set forth the acknowledgement required under Rule 379.04; and

             (d) be signed by the initiating party or that party’s attorney.

       Subd. 3.  Content of Supporting Affidavit.  A supporting affidavit shall:

             (a) state detailed facts supporting the request for relief, including the facts establishing parentage;

             (b)          provide all information required by Minn. Stat. § 518.5513, subd. 3(a), if known; and

             (c) be signed and sworn to under oath.

 

Advisory Committee Comment

 

                    Pursuant to Minn. Stat. § 518.5513, subd. 3(a), for all cases involving establishment or modification of support, the pleadings are to contain specific information.  At times, it may be necessary to attach additional supporting documents.  Each county should establish its own local policy regarding the attachment of supporting documents.  

 

Rule 371.03  Service of Summons and Complaint

 

       Subdivision 1.  Who is Served.  The biological mother, each man presumed to be the father under Minn. Stat. § 257.55 (2000), each man alleged to be the biological father, and the county agency even if not a party, shall be served pursuant to subdivision 2.

       Subd. 2.  How Served.  The summons and complaint, any supporting affidavit, and if required, a request for blood or genetic testing, shall be served upon the parties by personal service, or alternative personal service, pursuant to Rule 355.02, unless personal service has been waived in writing.

 

       (Amended effective November 1, 2003.)

 

Rule 371.04  Filing Requirements

 

       Subdivision 1.  Initiating Party.  No later than five (5) days before any scheduled hearing or, if no hearing is scheduled, within fourteen (14) days from the date the last party was served, the initiating party shall file the following with the court:

(a)   the original summons;

(b)  the original complaint;

(c)   the original supporting affidavit, if served; and

(d)  proof of service upon each party pursuant to Rule 355.04.

       Subd. 2.  Responding Party.  If a noninitiating party responds with a written response pursuant to Rule 371.05, the following, if served, shall be filed with the court no later than five (5) days before any scheduled hearing:

(a)     the original written answer; or

(b)     a request for blood or genetic testing; and

(c)     proof of service upon each party pursuant to Rule 355.04.

       Subd. 3.  Facsimile Transmission.  If a paper is filed by facsimile, the sender’s original must not be filed but must be maintained in the files of the party transmitting it for filing and made available to the court or any party to the action upon request.

Subd. 4.  Treatment of Confidential Information.  To retain privacy, restricted identifiers (e.g., social security numbers, employer identification numbers, financial account numbers) must be blackened out from any documents provided under this rule and may only be submitted on a separate Confidential Information Form as required in Rule 11 of these rules.  In addition, financial source documents (e.g., tax returns, wage stubs, credit card statements) must be submitted under a cover sheet entitled “Sealed Financial Source Documents” as required in Rule 11.

 

               (Amended effective January 1, 2006.)

 

Rule 371.05  Response

 

       Subdivision 1.  Response Options.  In addition to appearing at the hearing as required under Rule 371.10, subd. 1, a noninitiating party may do one or more of the following:

(a)   contact the initiating party to discuss settlement; or

(b)  within fourteen (14) days of service of the summons and complaint, serve upon all parties one or more of the written responses pursuant to subdivision 2. 

       Subd. 2.  Types of Written Response. 

(a)  Request for Blood or Genetic Test.  A noninitiating party may serve and file a request for blood or genetic testing either alleging or denying paternity.  Filing of a request for blood or genetic testing shall, with the consent of the parties, extend the time for filing and serving a written answer until the blood or genetic test results have been mailed to the parties.  In this event, the alleged parent shall have ten (10) days from the day the test results are mailed to the alleged parent in which to file and serve a written answer to the complaint.  

(b)  Written Answer.  A noninitiating party may serve and file a written answer responding to all allegations set forth in the complaint.  The matter shall proceed pursuant to Rule 353.02, subd. 3, if the written answer raises one or more of the following issues:  parentage, custody, parenting time, or the legal name of the child.

 

Rule 371.06  Blood or Genetic Testing Requested Before Hearing

 

       When a request for blood or genetic testing is made prior to the hearing pursuant to Rule 371.05, the child support magistrate shall issue an order for blood or genetic testing and shall continue the hearing to allow the tests to be completed and the results to be received.

 

Rule 371.07  Amended Pleadings

 

       Subdivision 1.  Service.  At any time up to ten (10) days before a scheduled hearing, the initiating party may serve and file amended pleadings.

       Subd. 2.  Response.  If the noninitiating party chooses to respond to amended pleadings, the response must be made within the time remaining for response to the original pleading or within ten (10) days after service of the amended pleadings, whichever period is longer, unless the court otherwise orders.

 

Rule 371.08  Fees

 

       A filing fee shall be paid pursuant to Rule 356 upon the filing of:

(a)     the summons and complaint; and

(b)     the written answer or the request for blood or genetic testing, if any.

 

Rule 371.09  Settlement Procedure

      

       The parties may settle the case at any time pursuant to Rule 362.

 

Rule 371.10  Hearing Procedure

 

       Subdivision 1.  Hearing Mandatory.  A hearing shall be held to determine parentage, except as provided in subdivision 2.  All parties shall appear at the hearing.  If a party fails to appear at a hearing for which notice was properly served, the child support magistrate shall either refer the matter to district court or proceed pursuant to Rule 365.01.  The hearing shall proceed pursuant to Rule 364, except that paternity hearings from commencement through adjudication shall be closed to the public.  All hearings following entry of the order determining the parent and child relationship are open to the public.   

       Subd. 2.  Exception.  If all parties, including the county agency, sign an agreement that contains all statutory requirements for a parentage adjudication, including a statement that the parties waive their right to a hearing, the hearing may be stricken.  The matter shall not be stricken from the court calendar until after the child support magistrate reviews and signs the agreement.  The court administrator shall strike the hearing upon receipt of the agreement signed by the child support magistrate.

 

Rule 371.11  Procedure When Blood or Genetic Testing Requested

 

       Subdivision 1.  Blood or Genetic Testing Requested at Hearing.  When blood or genetic testing is requested at the hearing, the child support magistrate shall issue an order for blood or genetic testing and shall continue the hearing to allow the tests to be completed and the results to be received. 

       Subd. 2.  Blood or Genetic Testing Requested and Conducted Prior to Hearing.  When blood or genetic testing is completed prior to the hearing and parentage is contested, the child support magistrate may upon motion set temporary child support pursuant to Minn. Stat. § 257.62, subd. 5 (2000), and shall refer the matter to district court pursuant to Rule 353.02, subd. 3.

 

Rule 371.12  Procedure When Written Answer Filed

 

       Subdivision 1.  Objections under the Parentage Act.  The matter shall proceed pursuant to Rule 353.02, subd. 3, if the written answer contains an objection to one or more of the following issues:  parentage, custody, parenting time, or the legal name of the child.

       Subd. 2.  Genetic Tests Received.  When blood or genetic test results have been received and the results indicate a likelihood of paternity of ninety-two (92) percent or greater and a motion to set temporary support has been served and filed, the issue of temporary support shall be decided by the child support magistrate and the matter shall be referred to district court for further proceedings.  Failure of a party to appear at the hearing shall not preclude the child support magistrate from issuing an order for temporary support.

       Subd. 3.  Objection to Support.  A written answer objecting to any issue other than parentage, custody, parenting time, or the legal name of the child shall not prevent the hearing from proceeding.  Failure of a party to appear at the hearing shall not preclude the child support magistrate from determining paternity and issuing an order for support.

 

Rule 371.13  Procedure When Written Answer Not Filed

 

       If a written answer has not been served and filed by a noninitiating party and that party fails to appear at the hearing, the matter shall be heard and an order shall be issued by the child support magistrate.  When the complaint, motion, or supporting affidavit contains specific requests for relief on the issue of custody, parenting time, or the legal name of the child, and proper service has been made upon all parties, the child support magistrate may grant such relief when a noninitiating party fails to appear at the hearing.

 

Advisory Committee Comment

 

        Minnesota Statues § 257.651 (2000) provides that if the alleged father fails to appear at a hearing after service duly made and proved, the court may issue an order.  The Committee also intends that the court may issue an order if the mother fails to appear after service duly made and proved.

 

Rule 371.14  Decision and Order

 

       The decision and order of the court shall be issued pursuant to Rule 365.

 

Rule 371.15  Review and Appeal

 

       Motions to correct clerical mistakes, if any, shall proceed pursuant to Rule 375.  Review, if any, shall proceed pursuant to Rule 376.  Appeal, if any, shall proceed pursuant to Rule 378.

 

RULE 372.  MOTIONS TO MODIFY, MOTIONS TO SET SUPPORT,
AND OTHER MATTERS

 

Rule 372.01  Commencement

 

       Subdivision 1.  Motions to Modify and Motions to Set Support.  A proceeding to modify an existing support order shall be commenced in the expedited process by service of a notice of motion, motion, and supporting affidavit pursuant to Rule 372.03.  A proceeding to set support where a prior order reserved support may be commenced in the expedited process by service of a notice of motion and motion and supporting affidavit pursuant to Rule 372.03.  If the notice of motion does not contain a hearing date, a request for hearing form shall be attached to the notice of motion.  In addition to service of the notice of motion and motion, an order to show cause may be issued pursuant to Minn. Gen. R. Prac. 303.05. Service shall be made at least twenty (20) days prior to any scheduled hearing.

       Subd. 2.  Other Motions.  Except as otherwise provided in these rules, all proceedings shall be commenced in the expedited process by service of a notice of motion, motion, and supporting affidavit.

 

Rule 372.02  Content of Notice of Motion, Motion, Supporting Affidavit, and Request for Hearing Form

 

       Subdivision 1.  Content of Notice.  A notice of motion shall:

(a)   state the name of the court;

(b)   state the names of the parties as set forth in the summons and complaint, or summons and petition, unless amended by order of the court;

       (c)  state an address where the initiating party may be served;

       (d)        state the purpose of the action;

       (e)  for motions brought pursuant to Rule 372.01, subd. 2, state the date, time, and location of the hearing;

       (f)  for motions brought pursuant to Rule 372.01, subd. 1, either state the date, time, and location of the hearing if one is scheduled or, if no hearing is scheduled, state that any party has a right to a hearing and attach a request for hearing form;

       (g)  provide information about serving and filing a written response pursuant to Rule 372.04 and Rule 372.05;

       (h) state that all parties shall appear at the hearing if one is scheduled, and if any party fails to appear at the hearing, the child support magistrate shall proceed pursuant to Rule 365.01;

       (i) state that a party has a right to representation pursuant to Rule 357;

       (j) state that the case may be settled informally by contacting the initiating party and include the name, address, and telephone number of the person to contact to discuss settlement; and

       (k) be signed by the initiating party or that party’s attorney.

       If there is reason to believe that domestic violence exists or if an order for protection has been issued, the party may provide an alternative address and telephone number.  Pursuant to Minn. Stat. § 518.005, subd. 5, in all actions in which public assistance is assigned or the county agency is providing services to a party or parties to the action, information regarding the location of one party may not be released by the county agency to the other party if the county agency has knowledge that a protective order with respect to the other party has been entered or has reason to believe that the release of the information may result in physical or emotional harm to the other party.

       Subd. 2.  Content of Motion.  A motion shall:

       (a)  state the relief the initiating party wants the child support magistrate to order;

       (b)  state the specific support that the initiating party wants the child support magistrate to order if the notice of motion does not contain a hearing date;

       (c)  state the facts and grounds supporting the request for relief;

       (d)  set forth the acknowledgement under Rule 379.04; and

       (e)  be signed by the initiating party or that party’s attorney.

       Subd. 3.  Content of Supporting Affidavit.  A supporting affidavit shall:

       (a)  state detailed facts supporting the request for relief;

       (b)  for motions to modify support and motions to set support, provide all information required by Minn. Stat. § 518.5513, subd. 3(a), if known; and

       (c)  be signed and sworn to under oath.

 

Advisory Committee Comment

 

                    Pursuant to Minn. Stat. § 518.5513, subd. 3(a), for all cases involving establishment or modification of support, the pleadings are to contain specific information.  At times, it may be necessary to attach additional supporting documents.  Each county should establish its own local policy regarding the attachment of supporting documents.  

 

       Subd. 4.  Content of Request for Hearing Form.  A request for hearing form shall contain the name and address of the initiating party, and a short and concise statement that a noninitiating party requests a hearing.   

 

Rule 372.03  Service of Notice of Motion and Motion

 

       Subdivision 1.  Who is Served.  All parties, and the county agency even if not a party, shall be served pursuant to subdivision 2. 

       Subd. 2.  How Served.  The notice of motion, motion, supporting affidavit, and if required, the request for hearing form, may be served upon the parties either by U.S. mail, facsimile, or by personal service pursuant to Rule 355.02.

 

Rule 372.04  Filing Requirements

 

       Subdivision 1.  Initiating Party.  No later than five (5) days before any scheduled hearing or, if no hearing is scheduled, within fourteen (14) days from the date the last party was served, the initiating party shall file the following with the court:

(a)     the original notice of motion;

(b)     the original motion;

(c)     the original supporting affidavit;

(d)     the request for hearing form, if returned to the initiating party; and

(e)     proof of service upon each party pursuant to Rule 355.04

       Subd. 2.  Responding Party.  If a noninitiating party responds with a responsive motion or counter motion pursuant to Rule 372.05, the following shall be filed with the court no later than five (5) days before any scheduled hearing or, if no hearing is scheduled, within fourteen (14) days from the date the last party was served:

(a)   the original responsive motion or counter motion; and

(b)  proof of service upon each party pursuant to Rule 355.04.

       Subd. 3.  Facsimile Transmission.  If a paper is filed by facsimile, the sender’s original must not be filed but must be maintained in the files of the party transmitting it for filing and made available to the court or any party to the action upon request.

       Subd. 4.  Treatment of Confidential Information.  To retain privacy, restricted identifiers (e.g., social security numbers, employer identification numbers, financial account numbers) must be blackened out from any documents provided under this rule and may only be submitted on a separate Confidential Information Form as required in Rule 11 of these rules.  In addition, financial source documents (e.g., tax returns, wage stubs, credit card statements) must be submitted under a cover sheet entitled “Sealed Financial Source Documents” as required in Rule 11.

 

               (Amended effective January 1, 2006.)

 

Rule 372.05  Response

 

       Subdivision 1.  Hearing Date Included in the Notice of Motion.  Inclusion of a hearing date does not preclude a noninitiating party from serving and filing a responsive motion or counter motion.  A noninitiating party may serve upon all parties a responsive motion or counter motion along with a supporting affidavit at least fourteen (14) days prior to the hearing. The service and filing of a responsive motion or counter motion does not preclude the hearing from going forward and the child support magistrate may issue an order based upon the information in the file or evidence presented at the hearing if a noninitiating party fails to appear at the hearing.

       Subd. 2.  Hearing Date Not Included in the Notice of Motion.  If the notice of motion does not contain a hearing date, a noninitiating party shall either:

(a)   request a hearing by returning the request for hearing form to the initiating party; or

(b)  within fourteen (14) days of service of the notice of motion and motion, serve upon all other parties a responsive motion or counter motion.

       The initiating party shall schedule a hearing upon receipt of a request for hearing form, a responsive motion, or counter motion.  Failure of the noninitiating party to request a hearing, to serve a responsive motion, or to appear at a scheduled hearing shall not preclude the matter from going forward, and the child support magistrate may issue an order based upon the information in the file or the evidence presented at the hearing.

 

       (Amended effective November 1, 2003.)

 

Rule 372.06  Amended Motions

 

       Subdivision 1.  Service.  At any time up to ten (10) days before a scheduled hearing, the initiating party may serve and file an amended motion.  If no hearing date has been scheduled, the initiating party may serve and file an amended motion within the time remaining for response.

       Subd. 2.  Response.  If the noninitiating party chooses to respond to an amended motion, the response must be made within the time remaining for response to the original motion or within ten (10) days after service of the amended motion, whichever period is longer, unless the court otherwise orders.

 

Rule 372.07  Fees

 

       Subdivision 1.  Filing Fee.  A filing fee shall be paid pursuant to Rule 356 upon the filing of:

(a)     the notice of motion and motion; and

(b)     the responsive motion or counter motion.

     Subd. 2.  Modification Fee.  Pursuant to Minn. Stat. § 357.021, subd. 2(13), a separate fee shall also be collected upon the filing of the motion to modify and a responsive motion or counter motion.

 

Advisory Committee Comment - 2006

 

        Rule 372.07, subd. 2, is amended to correct the statutory reference.  In 2005, the legislature set the modification fee to be collected under Rule 372.07 at $55.00.  Act of June 3, 2005, ch. 164, § 2, 2005 Minn. Laws 1878, 1879-80 (to be codified at Minn. Stat. § 357.021).  Litigants are advised to review the statute or contact the court administrator for current fee amounts.

 

Rule 372.08  Settlement Procedure

 

       The parties may settle the case at any time pursuant to Rule 362.

 

Rule 372.09  Default Procedure

 

       An action to modify or set support may proceed by default pursuant to Rule 363.

 

Rule 372.10  Hearing Procedure

 

       Any hearing shall proceed pursuant to Rule 364. If the notice of motion contains a hearing date, all parties shall appear at the hearing.  If a party fails to appear at a hearing for which notice was properly served, the child support magistrate shall proceed pursuant to Rule 365.01.

 

Rule 372.11  Decision and Order

 

       The decision and order of the court shall be issued pursuant to Rule 365

 

Rule 372.12  Review and Appeal

 

       Motions to correct clerical mistakes, if any, shall proceed pursuant to Rule 375.  Review, if any, shall proceed pursuant to Rule 376.  Appeal, if any, shall proceed pursuant to Rule 378.

 

RULE 373.  ENFORCEMENT PROCEEDINGS

 

Rule 373.01  Types of Proceedings

 

       All proceedings seeking statutory remedies shall be heard in the expedited process except as prohibited by statute or as follows:

(a)  evidentiary hearings for contempt;

(b) matters of criminal non-support;

             (c)  motions to vacate a recognition of paternity or paternity adjudication; and

(d) matters of criminal contempt.

       Civil contempt proceedings are permitted pursuant to Rule 353.01, subd. 2.

 

Rule 373.02  Commencement

 

       Subdivision 1.  Procedure Provided.  When an enforcement proceeding is initiated pursuant to procedures set forth in statute, and a hearing is requested as permitted by statute, the matter shall be commenced in the expedited process by service of a notice of hearing.  The hearing shall proceed pursuant to Rule 364.

       Subd.  2.  Procedure Not Provided.  Any enforcement proceeding where the statute does not provide a procedure to obtain a hearing shall be commenced in the expedited process pursuant to Rule 372.

       Subd.  3.  Civil Contempt.  Civil contempt proceedings shall be commenced pursuant to Rule 374.

 

RULE 374.  CIVIL CONTEMPT

 

Rule 374.01  Initiation

 

       Civil contempt proceedings initiated in the expedited process shall be brought according to the procedure set forth in Minn. Gen. R. Prac. 309.

 

Rule 374.02  Resolution of Contempt Matter

 

       If the parties reach agreement at the initial appearance, the agreement may be stated orally on the record or the county attorney may prepare an order that shall be signed by all parties and submitted to the child support magistrate for approval.  If approved, the order shall be forwarded to the court administrator for signing by a district court judge.  The order is effective upon signing by a district court judge.

 

Rule 374.03  Evidentiary Hearing

 

       If the parties do not reach agreement at the initial appearance, the child support magistrate shall refer the matter to the court administrator to schedule an evidentiary hearing before a district court judge or a family court referee.  A child support magistrate shall not consider or decide a contempt matter, except as provided in Rule 353.01, subd. 2.

 

Rule 374.04  Failure to Appear

 

       If the alleged contemnor fails to appear at the initial appearance, the child support magistrate may certify to a district court judge that the alleged contemnor failed to appear and may recommend issuance of a warrant for the person’s arrest.  Only a district court judge may issue arrest warrants.

 

3.   REVIEW AND APPEAL

 

RULE 375.  MOTION TO CORRECT CLERICAL MISTAKES

 

Rule 375.01  Initiation

 

       Clerical mistakes, typographical errors, and errors in mathematical calculations in orders, including orders for temporary support, arising from oversight or omission may be corrected by the child support magistrate at any time upon the magistrate’s own initiative or upon motion of any party after notice to all parties.

 

Rule 375.02  Procedure

 

       A motion to correct clerical mistakes shall be brought pursuant to Rule 377 and shall be made in good faith and not for purposes of delay or harassment. 

 

Rule 375.03  Decision

 

       A motion to correct clerical mistakes shall be decided by the child support magistrate who issued the decision and order.  If the child support magistrate who issued the order is unavailable, the motion to correct clerical mistakes may be assigned by the court administrator to another child support magistrate in the judicial district.  If an appeal has been made to the court of appeals pursuant to Rule 378, a child support magistrate may correct clerical mistakes, typographical errors, and errors in mathematical calculations only upon order of the appellate court.

 

Rule 375.04  Combined Motions

 

       A motion to correct clerical mistakes may be combined with a motion for review.  If a party intends to bring both a motion to correct clerical mistakes under this rule and a motion for review under Rule 376.01, the combined motion shall be brought within the time prescribed by Rule 377.02.  A combined motion may be decided either by the child support magistrate who issued the decision and order or, at the request of any party, by a district court judge.

 

RULE 376.  MOTION FOR REVIEW

 

Rule 376.01  Initiation

 

       Any party may bring a motion for review of the decision and order or judgment of the child support magistrate.  An order for temporary support is not subject to a motion for review.

 

Advisory Committee Comment

 

        A party may make a motion for review regarding an order, regardless of whether it was issued as a result of default, based upon a stipulation or agreement of the parties, or issued following a hearing.

 

Rule 376.02  Procedure

 

       A motion for review or a combined motion shall be brought pursuant to Rule 377 and shall be made in good faith and not for purposes of delay or harassment. 

 

Rule 376.03  Decision

 

       A motion for review may be decided either by the child support magistrate who issued the decision and order or, at the request of any party, a district court judge.  If the child support magistrate who issued the order is unavailable, the motion for review may be assigned by the court administrator to another child support magistrate in the judicial district.  If a district court judge issued the order in question, that judge shall also decide the motion for review.  If an appeal has been made to the court of appeals pursuant to Rule 378, a child support magistrate may decide a motion for review or a combined motion only upon order of the appellate court.

 

RULE 377.  PROCEDURE ON A MOTION TO CORRECT CLERICAL MISTAKES, MOTION FOR REVIEW, OR COMBINED MOTION

 

Rule 377.01  Other Motions Precluded

 

       Except for motions to correct clerical mistakes, motions for review, or motions alleging fraud, all other motions for post-decision relief are precluded, including those under Minn. R. Civ. P. 59 and  60 and Minn. Stat. § 518.145 (2000).

 

Rule 377.02  Timing of Motion

 

       To bring a motion to correct clerical mistakes, the aggrieved party shall perform items (a) through (e) as soon as practicable after discovery of the error.  To bring a motion for review or a combined motion, the aggrieved party shall perform items (a) through (f) within twenty (20) days of the date the court administrator served that party with the notice form as required by Rule 365.04.

       (a) Complete the motion to correct clerical mistakes form, motion for review form, or combined motion form.

       (b) Serve the completed motion for clerical mistakes form, motion for review form, or combined motion form upon all other parties and the county agency.  Service may be made by personal service or by U.S. mail pursuant to Rule 355.02.

       (c)  File the original motion with the court.  If the filing is accomplished by mail, the motion shall be postmarked on or before the due date set forth in the notice of filing.

       (d) File the affidavit of service with the court.  The affidavit of service shall be filed at the time the original motion is filed.

       (e)  Order a transcript of the hearing under Rule 366, if the party desires to submit a transcript.

       (f)  For a motion for review or combined motion, pay to the court administrator the filing fee required by Rule 356.01, if the party has not already done so.  The court administrator may reject the motion papers if the appropriate fee does not accompany the papers at the time of filing.

 

Rule 377.03  Content of Motion

 

       Subdivision 1.  Motion to Correct Clerical Mistakes.  A motion to correct clerical mistakes shall:

             (a)  identify by page and paragraph the clerical mistake(s) and state the correct language;

             (b) include the acknowledgement as required pursuant to Rule 379.04; and

             (c)  be signed by the party or that party’s attorney.

       Subd. 2.  Motion for Review or Combined Motion.  A motion for review or combined motion shall:

             (a)  state the reason(s) the review is requested;

             (b) state the specific change(s) requested;

             (c)  specify the evidence or law that supports the requested change(s);

             (d) state whether the party is requesting that the review be by the child support magistrate that issued the order being reviewed or by a district court judge;

             (e)  state whether the party is requesting an order authorizing the party to submit new evidence;

             (f)  state whether the party requests an order granting a new hearing;

             (g)  include the acknowledgement as required pursuant to Rule 379.04; and

             (h) be signed by the initiating party or that party’s attorney.

 

Rule 377.04  Response to Motion

 

       Subdivision. 1.  Timing of Response to Motion.  A party may respond to a motion to correct clerical mistakes or a motion for review.  Any response shall state why the relief requested in the motion should or should not be granted.  If a responding party wishes to raise other issues, the responding party must set forth those issues as a counter motion in the response.  To respond to a motion to correct clerical mistakes the party shall perform items (a) through (e) within ten (10) days of the date the party was served with the motion.  To respond to a motion for review or a combined motion the party shall perform (a) through (f) within thirty (30) days of the date the party was served with the notice under Rule 365.04.  To respond to a counter motion, the party shall perform items (a) through (f) within forty (40) days of the date the party was served with the notice under Rule 365.04.

             (a) Complete the response to motion to correct clerical mistakes form, response to motion for review form, or response to combined motion form.

             (b) Serve the completed response to motion for clerical mistakes form, response to motion for review form, or response to combined motion form upon all other parties and the county agency.  Service may be made by personal service or by United States mail pursuant to Rule 355.02.

             (c)  File the original response to motion with the court.  If the filing is accomplished by mail, the response to motion shall be postmarked on or before the due date set forth in the notice of filing.

             (d) File the affidavit of service with the court.  The affidavit of service shall be filed at the time the original response to motion is filed.

             (e)  Order a transcript of the hearing under Rule 366, if the party desires to submit a transcript.

             (f)  For a responsive motion for review or combined motion, pay to the court administrator the filing fee required by Rule 356.01, if the party has not already done so.  The  court administrator may reject the responsive papers if the appropriate fee does not accompany the papers at the time of filing.

       Subd. 2.  Content of Response to Motion

             (a) Content of Response to Motion to Correct Clerical Mistakes.  A response to a motion to correct clerical mistakes shall:

(1)       identify by page and paragraph the clerical mistake(s) alleged by the moving party and state whether responding party agrees or opposes the corrections;

(2)       include an acknowledgement as required pursuant to Rule 379.04; and

(3)       be signed by the responding party or that party’s attorney.

             (b) Content of Response to Motion for Review, Combined Motion, or Counter Motion.  A response to a motion for review, combined motion, or counter motion shall:

(1)       state why the relief requested should or should not be granted;

(2)       if new issues are raised, state the specific change(s) requested;

(3)       if new issues are raised, specify the evidence or law that supports the requested change(s);

(4)       state whether the party is requesting that the review be by the child support magistrate who issued the order being reviewed or by a district court judge;

(5)       state whether the party is requesting an order authorizing the party to submit new evidence;

(6)              state whether the party requests an order granting a new hearing;

(7)              include an acknowledgement as required pursuant to Rule 379.04; and

(8)       be signed by the responding party or that party’s attorney.

 

       (Amended effective November 1, 2003.)

 

Rule 377.05  Calculation of Time

 

       Subdivision 1.  Timing for Response to Motion to Correct Clerical Mistakes.  To calculate the time to respond to a motion to correct clerical mistakes, three (3) days shall be added to the ten (10) days for a total of thirteen (13) days within which to respond when the motion is served by mail.

       Subd. 2.  Timing for Service of Motion for Review or Combined Motion.  To calculate the time to serve a motion for review or combined motion, three (3) days shall be added to the twenty (20) days for a total of twenty-three (23) days within which to serve a motion when the notice form as required by Rule 365.04 is served by mail. 

       Subd. 3.  Timing for Response to Motion for Review or Combined Motion.  To calculate the time to serve a response to a motion for review or combined motion, three (3) days shall be added to the thirty (30) days for a total of thirty-three (33) days within which to respond when the notice form as required under Rule 365.04 is served by mail.  If the motion for review or combined motion is served by mail, an additional three (3) days shall be added to the thirty-three (33) days for a total of thirty-six (36) days within which to respond.

       Subd. 4.  Timing for Response to Counter Motion.  To calculate the time to serve a response to a counter motion, three (3) days shall be added to the forty (40) days for a total of forty-three (43) days within which to respond when the notice form as required under Rule 365.04 is served by mail.  If the counter motion to the motion for review or combined motion is served by mail, an additional three (3) days shall be added to the forty-three (43) days for a total of forty-six (46) days within which to respond.

 

Rule 377.06  Review When Multiple Motions Filed–Motion for Review

 

       If in a motion for review a party requests review by the child support magistrate and any other party requests review by a district court judge, all motions shall be assigned to a district court judge who shall either decide all issues or remand one or more issues to the child support magistrate with instructions.

 

Rule 377.07  Notice of Assignment of District Court Judge–Motion for Review

 

       If a party requests that a motion for review be decided by a district court judge, upon the filing of a motion containing such a request the court administrator shall as soon as practicable notify the parties of the name of the judge to whom the motion has been assigned.

 

Rule 377.08  Decision and Order Not Stayed

       The decision and order of the child support magistrate or district court judge remains in full force and effect and is not stayed pending a motion to correct clerical mistakes, a motion for review, or a combined motion.

 

Rule 377.09  Basis of Decision and Order

 

       Subdivision 1.  Timing.  Within forty-five (45) days of the close of the record, the child support magistrate or district court judge shall file with the court an order deciding the motion.  In the event a notice to remove is granted pursuant to Rule 368, the forty‑five (45) days begins on the date the substitute child support magistrate or district court judge is assigned.  The record shall be deemed closed upon occurrence of one of the following, whichever occurs later:

             (a)  filing of a response pursuant to Rule 377.04;

             (b) filing of a transcript pursuant to Rule 366;

             (c)  withdrawal or cancellation of a request for transcript pursuant to Rule 366; or

             (d) submission of new evidence under subdivision 4.

       If none of the above events occur, the record shall be deemed closed forty-six  (46) days after service of the notice of filing as required by Rule 365.04, despite the requirements of Rule 354.04.

       Subd. 2.  Decision.

             (a) Motion to Correct Clerical Mistakes.  The child support magistrate or district court judge may issue an order denying the motion to correct clerical mistakes or may issue an order making such corrections as deemed appropriate.   If the motion is denied, the child support magistrate or district court judge shall specifically state in the order that the findings, decision, and order are affirmed.

             (b) Motion for Review. The child support magistrate or district court judge shall make an independent review of any findings or other provisions of the underlying decision and order for which specific changes are requested in the motion.  The child support magistrate or district court judge shall affirm the order unless the court determines that the findings and order are not supported by the record or the decision is contrary to law.  The child support magistrate or district court judge may issue an order:

(1)       denying in whole or in part the motion for review;

(2)       approving, modifying, or vacating in whole or in part, the decision and order of the child support magistrate; or

(3)       scheduling the matter for hearing and directing the court administrator to serve notice of the date, time, and location of the hearing upon the parties. 

       In addition, the district court judge may remand one or more issues back to the child support magistrate with instructions.  If the child support magistrate who issued the order is unavailable, the motion may be assigned by the court administrator to another child support magistrate serving in the judicial district.  If any findings or other provisions of the child support magistrate’s or district court judge’s decision and order are approved without change, the child support magistrate or district court judge shall specifically state in the order that those findings and other provisions are affirmed but need not make specific findings or conclusions as to each point raised in the motion.  If any findings or other provisions of the child support magistrate’s or district court judge’s decision and order are modified, the child support magistrate or district court judge need only make specific findings or conclusions with respect to the provisions that are modified.

       Subd. 3.  Record on Review.  The review by the child support magistrate or district court judge shall be based upon the decision of the child support magistrate or district court judge and any exhibits and affidavits filed, and, where a transcript has not been filed, may be based upon all or part of the audio or video recording of the hearing.

       Subd. 4.  Additional Evidence Discretionary.  When bringing or responding to a motion to correct clerical mistakes, a motion for review, or a combined motion, the parties shall not submit any new evidence unless the child support magistrate or district court judge, upon written or oral notice to all parties, requests additional evidence.

       Subd. 5.  No Right to Hearing.  A hearing shall not be held unless ordered by the child support magistrate or district court judge.  The child support magistrate or district court judge may order a hearing upon motion of a party or on the court’s own initiative.  A party’s motion shall be granted only upon a showing of good cause.  In the event the child support magistrate or district court judge decides to conduct a hearing, the child support magistrate or the district court judge shall direct the court administrator to schedule a hearing date and to serve notice of the date, time, and location of the hearing upon all parties and the county agency.

       Subd. 6.  Costs and Fees.  The child support magistrate or district court judge may award costs and fees incurred in responding to a motion to correct clerical mistakes, motion for review, or combined motion if the child support magistrate or district court judge determines that the motion is not made in good faith or is brought for purposes of delay or harassment.

 

Rule 377.10  Notice of Order or Judgment

 

       Within five (5) days of receipt of an order issued as a result of a motion to correct clerical mistakes, a motion for review, or a combined motion, the court administrator shall serve a notice of filing of order or notice of entry of judgment upon each party by United States mail, along with a copy of the order or judgment.  The notice shall state that the parties have a right to appeal to the court of appeals under Rule 378.  If the order was issued by a district court judge, the court administrator shall provide a copy of the order to the child support magistrate.

 

Rule 377.11  Effective Date; Final Order

       The order issued following a motion to correct clerical mistakes, a motion for review, or a combined motion is effective and final when signed by the child support magistrate or district court judge.

 

RULE 378.  APPEAL TO COURT OF APPEALS

 

 

Rule 378.01  Generally

 

       An appeal may be taken to the court of appeals from a final order or judgment of a child support magistrate or from a final order deciding a motion for review under Rule 376.  Such an appeal shall be taken in accordance with the procedures set forth in the Minnesota Rules of Civil Appellate Procedure within sixty (60) days of the date the court administrator serves upon the parties the notice of filing of order or notice of entry of judgment.  If any party brings a timely motion to correct clerical mistakes under Rule 375 or a timely motion for review under Rule 376, the time for appeal is extended for all parties while that motion is pending.  Once the last such pending motion is decided by the child support magistrate or district court judge, the sixty (60) days to appeal from the final order or judgment of a child support magistrate or from a final order deciding a motion to correct clerical mistakes or a motion for review runs for all parties from the date the court administrator serves upon the parties the notice of filing of order or notice of entry of judgment disposing of that motion.  A notice of appeal filed before the disposition of a timely motion to correct clerical mistakes or for review is premature and of no effect, and it does not divest the child support magistrate of jurisdiction to dispose of the motion.  Except as otherwise provided in these rules, the Minnesota Rules of Civil Appellate Procedure shall govern the taking and processing of such appeals.

 

Advisory Committee Comment

 

        Timing.  Under Minn. R. Civ. App. P. 104.01, the sixty (60) days in which to bring an appeal to the court of appeals begins to run on the date of service by any party of written notice of filing of an appealable order or on the date on which an appealable judgment is entered.  The Advisory Committee intends that Rule 378 supersede the appellate rule to provide that the sixty (60) days to appeal begins to run from the time the court administrator serves the written notice of filing of order or notice of entry of judgment.

        Scope of Review.  A party may choose to bring a motion to correct clerical mistakes, or a motion for review, or to appeal directly to the court of appeals thus bypassing the first two options.  However, if a party chooses the option of appealing directly to the court of appeals without first bringing a motion for review, such an appeal will be limited to determining whether the evidence sustains the findings of fact (to which the “clearly erroneous” standard of review applies) and whether the findings support the conclusions of law and the judgment.  Kahn v. Tronnier, 547 N.W.2d at 428 , rev. denied (Minn. July 10, 1996).  Thus, although a motion for review is very important to obtaining the broadest possible appellate review, it is not an absolute prerequisite to appeal--a litigant can choose to file a direct appeal from the order of the child support magistrate, but the appeal will be limited to issues within that narrower scope of review.

 

4.   FORMS

 

RULE 379.  FORMS

 

Rule 379.01  Court Administrator to Provide Forms

 

       Whenever a court administrator is required to provide forms under these rules, those forms shall be provided to the parties in the most accessible method for the parties, including fax, electronic mail, in person, by United States mail, or in alternate formats.

 

Rule 379.02  Substantial Compliance

 

       The forms developed by the state court administrator and by the department of human services for use in the expedited process, or forms substantially in compliance with such forms, are sufficient for purposes of these rules.

 

Advisory Committee Comment

        The Advisory Committee encourages use of the standardized forms developed by the state court administrator and department of human services.  However, regardless of such standardized forms, attorneys representing the parties and the county attorney representing the interests of the county agency retain professional responsibility for the form and content of pleadings and other legal documents used in the expedited process.

 

Rule 379.03  Modification of Forms

 

       Except as otherwise provided in these rules, a party has discretion to modify the standardized forms to address the factual and legal issues that cannot be adequately covered by standardized forms.

 

Rule 379.04  Acknowledgement

 

       Subdivision 1.  Generally.  Each complaint or motion served and filed in the expedited process shall set forth an acknowledgement by the party or the party’s attorney.   By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or pro se party is certifying that to the best of the person’s knowledge, information, and belief:

             (a)  it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

             (b) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

             (c)  the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery;

             (d) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief; and

             (e)  the court may impose an appropriate sanction upon the attorneys, law firms, or parties that violate the above stated representations to the court, or are responsible for the violation.

       Subd. 2.  Motions to Correct Clerical Mistakes and Motions for Review.  In motions to correct clerical mistakes, motions for review, or combined motions, the acknowledgement shall also include the following:

             (a)  a statement that the existing order remains in full force and effect and the parties must continue to comply with that order until a new order is issued; and

             (b) a statement that the party understands that the child support magistrate or judge will decide whether the party may submit new information or whether the party may have a hearing, and that the parties will be notified if the party’s request is granted.

 

Rule 379.05  Exception from Rules Governing Civil Actions

 

       Subdivision 1.  Informational Statement.  The Informational Statement required by Minn. Gen. R. Prac. 304.02 is not required to be filed in cases brought in the expedited process.

       Subd. 2.  Prehearing Statement.  The Prehearing Statement required by Minn. Gen. R. Prac. 305.01 is not required to be filed in cases brought in the expedited process.

 

 

APPENDIX OF FORMS