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STATE OF MINNESOTA
IN COURT OF APPEALS
C1-00-514
In the Matter of Dennis Halverson on behalf of Evelyn Halverson,
petitioner,
Respondent,
vs.
Stuart Taflin,
Respondent Below,
Suzanne Chute, f/k/a Suzanne Halverson,
Appellant.
Filed October 3, 2000
Reversed and remanded
Anderson, Judge
Beltrami County District Court
File No. F9991688
Frederick R. Weddel, Route 2, Box 175, Bemidji, MN 56601-8214 (for respondent)
Michael R. Ruffenach, 504 Beltrami Avenue, P.O. Box 262, Bemidji, MN 56619-0262 (for
appellant)
Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge, and Anderson, Judge.
S Y L L A B U S
A parent meeting the criteria of Minn. R. Civ. P. 24.01 has a right to intervene in non-ex parte
proceedings commenced under the Domestic Abuse Act, Minn. Stat. § 518B.01 (1998), on behalf
of the parent's child.
O P I N I O N
ANDERSON, Judge
Appellant seeks reversal of the district court's order denying her motion to intervene in concluded
domestic abuse proceedings. Respondent, appellant's former husband, sought an order for
protection on behalf of their child, alleging abuse by appellant's boyfriend. Appellant, the child's joint
legal and sole physical custodian, was not made a party to the domestic abuse proceedings. The
district court's order for protection granted respondent temporary custody for one year and later
denied appellant's motion to intervene as untimely. Because the district court erred by denying
appellant's intervention motion, we reverse and remand.
FACTS
Appellant Suzanne Chute and respondent Dennis Halverson dissolved their twelve-year marriage in
May 1998. The parties have a daughter, Evelyn Halverson, now age nine. The dissolution court
awarded the parties joint legal custody and granted appellant physical custody. Respondent
received generous visitation rights. On November 17, 1999, respondent requested an ex parte
order for protection against Stuart Taflin, appellant's live-in boyfriend, on behalf of daughter Evelyn.
Respondent alleged that Taflin had threatened to kill Evelyn and appellant. Both respondent,
represented by counsel, and Taflin, appearing pro se, attended a November 24, 1999, hearing. The
district court found Taflin had abused Evelyn and issued a non-ex parte temporary order for
protection. Among other things, the order, filed November 29, 1999, transferred both legal and
physical custody of Evelyn to respondent for one year.
By motion filed December 23, 1999, appellant sought, among other things, to vacate the order's
custody provisions. The motion captioned appellant as “Intervenor.” The district court treated the
motion as one for intervention of right and, by order dated March 1, 2000 and incorporated
memorandum, denied appellant's motion as untimely under Minnesota Rule of Civil Procedure
24.01. Appellant challenges the district court's denial of her motion.
ISSUE
Did the district court err by denying appellant's motion for intervention of right?
A N A L Y S I S
Appellant argues that the district court erred by denying her motion to intervene. Where intervention
is sought as a matter of right, we conduct an independent review of the district court's order. Weiler
v. Lutz, 501 N.W.2d 667, 670 (Minn. App. 1993), aff'd sub nom. Valentine v. Lutz, 512
N.W.2d 868 (Minn. 1994). To successfully intervene as a matter of right under rule 24.01, a party
must show (1) an interest relating to the property or transaction that is the subject of the action; (2)
as a practical matter, disposition of the action may impair or impede the party's ability to protect
that interest; (3) the party is not adequately represented by the existing parties; and (4) the motion
was timely. Minn. R. Civ. P. 24.01.
Appellant clearly has a fundamental interest in her child. See In re Welfare of H.G.B., 306 N.W.2d
821, 825 (Minn. 1981) (recognizing the longstanding fundamental right of parents to their child's
companionship). A disposition such as the change of custody here, however temporary, infringes on
that interest. Neither respondent, as appellant's former spouse, nor Stuart Taflin, as a party without
any rights or legally protected interests with respect to the child, could adequately protect
appellant's parental interest. The district court observed that appellant “should have been a party
because of her parental interest,” but held that appellant's motion to intervene was untimely. The
district court explained that, “it is doubtful that `timely' [within the meaning of rule 24] includes a
date nearly a month after an order has been entered.”
“Timeliness” of an application to intervene is determined on a case-by-case basis and depends on
factors such as (1) how far the subject suit has progressed; (2) the reason for delay in seeking
intervention; and (3) any prejudice to existing parties because of the delay. Blue Cross/Blue Shield
v. Flam by Strauss, 509 N.W.2d 393, 396 (Minn. App. 1993), review denied (Minn. Feb. 24,
1994). Courts favor intervention and rules concerning intervention of right are to be liberally
applied, but posttrial intervention is not viewed favorably because of the potential prejudice to the
original parties. See id. This court has deemed intervention untimely if the prejudice to the original
parties will be substantial. Omegon, Inc. v. City of Minnetonka, 346 N.W.2d 684, 687 (Minn.
App. 1984).
Applying the timeliness test to the unique circumstances in this case favors intervention. That
appellant filed her motion after the protection order issued ordinarily weighs against intervention.
Appellant, however, explained by affidavit that she did not seek to intervene before the protection
hearing because legal aid attorneys assured her that the district court could not change Evelyn's
custody without appellant's participation. After the order for protection issued, appellant retained
private counsel who apparently misread the filing procedures for motions to intervene as set forth in
Minn. R. Civ. P. 24.03. Appellant's reliance on the advice of counsel is, under these circumstances,
understandable, and we do not believe the subsequent attorney's mistake so great as to be fatal to
the timeliness of her motion. See McClellan v. Goldberg, 568 N.W.2d 860, 863 (Minn. App.
1997) (explaining this court's historical “reluctance to see clients suffer as a result of counsel's
neglect”).
Moreover, it does not appear that the existing parties would have been “substantially” prejudiced if
appellant had been joined as a party, even after the order for protection issued. The entire
protection hearing generated only two full pages of transcript. The order for protection is not
complicated and revisiting the custody issue would not involve the undoing of intricate custody
transfers or commercial transactions. Cf. Tischendorf v. Tischendorf, 321 N.W.2d 405, 409
(1982) (intervention motion untimely where brought only a few days prior to child's scheduled
departure for Germany); Omegon, 346 N.W.2d at 687 (finding prejudice where one party relied
on a city's issuance of a conditional use permit pursuant to court's order). Accordingly, we hold
that, under the unique and compelling circumstances present in this case, appellant's motion to
intervene was timely and ought to have been granted.
Respondent contends that the Domestic Abuse Act, Minn. Stat. § 518B.01 (1998), cannot
accommodate third parties such as appellant. The Domestic Abuse Act governs orders for
protection, but does not provide for third-party intervention. Id. Intervention in family law cases has,
historically, been governed by Minn. R. Civ. P. 24. See, e.g., Tischendorf, 321 N.W.2d at 409
(applying rule in child custody dispute).
Appellate courts have, however, placed some limitations on the use of rules of civil procedure in
child custody matters and domestic abuse cases. In Valentine v. Lutz, the supreme court held that
foster parents seeking to intervene in a custody case could not do so by virtue of rule 24 because
the “very personal and family interests” of foster parents were not the “interests relating to the * * *
property or transaction[s]” contemplated by rule 24. 512 N.W.2d 868, 870 (Minn. 1994); see
also Van Meveren v. Van Meveren, 603 N.W.2d 671, 673 (Minn. App. 1999) (denying sister
rule 24 intervention right in brother's custody case). In Whalen ex rel. Whalen v. Whalen, we
recognized that district courts have broad equitable powers to act quickly in emergency domestic
abuse situations, and need not strictly adhere to statutory procedures. 594 N.W.2d 277, 280-281
(Minn. App. 1999) (declining to add civil notice procedures to those already provided in the
Domestic Abuse Act); see also Baker v. Baker, 494 N.W.2d 282, 287 (Minn. 1992) (“The
requirements of due process are flexible and call for such procedural protections as the particular
situation demands.”).
Those limitations do not preclude us from applying rule 24 in this case. The failure to grant a parent
an opportunity to be heard on custody issues is a denial of equal protection and due process.
Stanley v. Illinois, 405 U.S. 645, 657-58, 92 S. Ct. 1208, 1215-16 (1972). Even a temporary
order for protection may deprive a parent of a liberty interest in his or her child. Baker, 494
N.W.2d at 287-88. For this reason, the Domestic Abuse Act, which specifically provides for ex
parte orders for protection in emergency situations, includes “extensive procedural protections” that
guard against erroneous deprivation of a parent's rights. Id. One of the significant procedural
protections is the limited duration of an ex parte order for protection. See Minn. Stat. § 518B.01,
subd. 7(c), (d) (providing that, where a party requests a hearing, an ex parte order remains in effect
for only 7 to 10 days, until modified or vacated).
In this case, the district court's order does not refer to any emergency. The order is not ex parte,
and consequently, is not of a brief duration. Instead, the order is effective for one year and may be
renewed if Evelyn reasonably continues to fear physical harm from Taflin. See Minn. Stat. §
518B.01, subd. 6a (permitting court to extend relief granted in existing order for protection if
statutory criteria are met). Unlike the ex parte emergency circumstances in which the parent's due
process interests “must yield to considerations of the child's welfare,” Baker, 494 N.W.2d at 287,
the district court did not find any emergency circumstances in this case that warrant denying
appellant her due process right to participate in protection proceedings that acutely affect her
parental interest.
Nor do we see any procedural impediment to applying Minn. R. Civ. P. 24.01 in this case. Unlike
the civil notice requirements that Whalen determined were inapplicable because the Domestic
Abuse Act provided for its own notice procedures, the Domestic Abuse Act does not contain any
intervention provisions that conflict with Minn. R. Civ. P. 24.01. Indeed, the Domestic Abuse Act
contemplates that custody determinations will involve both parents. See, e.g., Minn. Stat. §
518B.01, subd. 6(a)(4) (1998) (permitting the court to award temporary custody “with regard to
minor children of the parties,” considering the safety of the children) (emphasis added). Because
allowing parental intervention protects fundamental due process rights and complements the
Domestic Abuse Act's custody provisions, we determine that Minn. R. Civ. P. 24.01 is the proper
rule for district courts to use when a parent seeks to intervene in domestic abuse proceedings that
are not ex parte actions.
We conclude that the district court erred by denying appellant's motion to intervene. Although the
district court's decision to award respondent custody of Evelyn may well have been within its broad
discretion, absent an immediate and present danger of abuse necessitating an ex parte order, due
process compelled appellant's inclusion in the action to protect her fundamental parental rights. [1]
Accordingly, we reverse and remand to allow the district court to reconsider the order for
protection in light of appellant's arguments and evidence.
D E C I S I O N
A custodial parent not made party to non-ex parte proceedings commenced under the Domestic
Abuse Act by the other parent on behalf of the parents' child may intervene if the parent meets the
criteria of Minn. R. Civ. P. 24.01.
Reversed and remanded.
Footnotes
[1] In reversing the district court on the issue of intervention under these unique facts we do not
reach the merits of the substantive issue nor do we minimize in any way the district court's proper
concern for the well-being and safety of the minor child. Those issues can be more adequately
addressed with a better record.
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