This week’s consolidated Round-Up features two unpublished cases out of the Court of Appeals.

In re the Marriage of Ross vs. Ross, A13-0611 (Minn. Ct. App. June 16, 2014). A case that received some attention outside family law circles because of Husband’s position as a sitting Judge on the Court of Appeals. Judge Ross’s status as a party proceeding pro se even garnered some brief coverage from Minnesota Lawyer on their blog, but, I’ll avoid the personal details.

The parties divorced in 2009, after a 24-year marriage. Under their stipulated Decree, Wife received $4,500 per month in spousal maintenance while she retrained (having stayed at home through much of the marriage) subject to de novo review in 2012. When the parties returned to Court, Husband sought termination of his spousal maintenance obligation, while Wife argued for a permanent award of $2,500 per month. The district court sided with Wife, citing the length of the marriage, Husband’s substantially greater income, and Wife’s inability to sustain the marital standard of living on her own.

On appeal, Husband contended that the district court improperly considered the “marital standard of living” rather than the standard of living the parties enjoyed at the time of divorce (presumably a somewhat reduced standard given the reduction in Husband’s income after he was appointed to the bench in 2006). Justice Meyer, writing for a panel of retired Judges, wasted little time dismissing Husband’s arguments:

[Husband]’s claim, moreover, defies equity and common sense. Financial difficulties are a common contributing factor to divorce. Under appellant’s view of the law, no matter what affluent lifestyle the parties enjoyed during the rest of the marriage, how long it lasted, or whether one spouse was a homemaker while the other advanced his or her career, if the parties were destitute at the time of divorce, a spouse could never obtain a future spousal maintenance award. In effect, the financial circumstances of the parties at the time of divorce would serve as a de facto Karon waiver, permanently limiting or outright divesting a court of jurisdiction to award spousal maintenance in myriad inequitable instances.

The Court was similarly unsympathetic to Husband’s characterization of Wife’s budget as “fraudulent and exaggerated,” holding that the lower Court’s findings were sufficient to sustain the amount and duration of the spousal maintenance award. In rejecting Husband’s arguments, the Court of Appeals declined to quibble whether the parties enjoyed an “upper middle class”  lifestyle (as found by the lower Court) or something less:

We discourage the district court from classifying lifestyles as “upper middle class” or “middle class” as those terms are broad and subject to conflicting interpretations.

In re the Matter of Hensely vs. Hall, A13-1478 (Minn. Ct. App. June 9, 2014). An appeal arising from an Order for Protection where ex-Husband claimed inadequate service of the Order.

Ex-Wife obtained an Order for Protection against Ex-Husband in 2013, while she was living in Minnesota and he was in the U.S. Virgin Islands. Before a hearing was held, Wife requested permission to serve the Order by publication, but offered no evidence that Husband was attempting to avoid service. The district court granted permission to serve Husband by publication, and later entered the OFP at a hearing at which Husband did not appear. When Husband returned to Minnesota in July, he requested that the Court vacate the OFP for improper service. The District Court denied Husband’s request, but made modifications to the OFP. Husband appealed.

Husband’s service arguments made more of an impression on the Court of Appeals. Citing Ayala v. Ayala, 749 N.W.2d 817 (Minn. App. 2008), the Court of Appeals vacated the OFP due to improper service. Quoting subd. 5(f) of Minnesota’s Domestic Abuse act, the Court observed that Wife was required to allege that an attempt at service was made by law enforcement (none was) and that she either did not know Husband’s address (she did) or that the papers had been mailed to him (they hadn’t).

While the Court noted that Wife had been acting pro se at the time, her misunderstanding wasn’t sufficient to excuse the failure of service:

Acting pro se at the time, respondent may not have understood that failing to check either box would leave her petition fatally flawed. Many pro se OFP petitioners benefit from the assistance of an advocate familiar with the procedural and statutory requirements who provides support beyond the clerical assistance provided by the district court. The record does not show whether an advocate was involved in this case, but we note that the statutory requirements for a valid OFP petition do not vary depending on whether a petitioner is pro se, represented by counsel, or assisted by a non-attorney advocate.

That’s it for this week(s). I’ll be taking Family-In-Law on the road in the next few weeks, taking some time out of the office but not away from the blog. ‘Til then.

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