Rule 303.Motions; Emergency Relief; Orders to Show Cause

Advisory Committee Comment—2012 Amendments

Rule 303.01 imposes a simple burden on any party, whether or not represented by counsel: to promptly advise the other parties when a hearing date is obtained from the court. The rule codifies common courtesy, but also serves specific purposes of reducing the need to reschedule motion hearings and permitting the other side to submit motions at the same hearing, if appropriate. “Promptly” is intentionally not rigidly defined, but notice should be sent the same day the hearing date is obtained. Notice of the assignment of a judicial officer also starts the time to remove an assigned judicial officer under Minn. R. Civ. P. 63.03 and Minn. Stat. § 542.16.

The Rule exempts a party from giving prior notice if there is a “possibility of abuse” and where the two parties share the same residence. This admittedly subjective standard is retained in the rule for the protection of victims of domestic violence. The trial court retains the authority to impose sanctions for the improper use of this exception.

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.

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).

Advisory Committee Comment—2012 Amendments

Motion practice in family law matters is intended to mirror, where appropriate to the needs of family law issues, the procedures followed generally in civil cases in Minnesota courts. The prevailing practice in Minnesota courts is for the submission of evidence relating to motions by written submissions, with sworn testimony provided by affidavit, deposition, or other written submissions. Rule 303.03(d)(1) restates that rule. The balance of Rule 303.03(d) addresses the process to request leave to present oral testimony in the limited circumstances where it may be appropriate. Minn. Stat. § 518.131, subd. 8, provides for allowing oral testimony upon demand of a party in requests for a temporary order or restraining order.

Rule 303.03(a)(5) makes it clear that the stringent timing requirements of the rule need not be followed on post-trial motions, such as a motion for a new trial or for amended findings made shortly after the conclusion of trial. See Minn. R. Civ. P. 52 & 59. This change is made to continue the uniformity in motion practice between family court matters and general civil cases, and is patterned on Minn. Gen. R. Prac. 115.01(c). Support, spousal maintenance, and custody modification motions, often brought months or years later, are subject to the general timing rules for motions.

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. The rule requires the moving party to initiate settlement efforts. If the motion is resolved, subsection (c) requires the parties to advise the court immediately. Although mandated settlement efforts may create additional challenges for pro se parties, Rule 1.04 requires compliance with the rules by all parties, including pro se parties, subject to relief granted by the court to prevent a manifest injustice under rule 1.02.

The rule explicitly addresses the requirement for paying a motion filing fee. Since 2003, Minnesota law requires a fee for “filing a motion or response to a motion in civil, family, excluding child support, and guardianship cases.” See Minn. Stat. § 357.021, subd. 2(4).

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.

Advisory Committee Comment—2012 Amendments

Rule 303.04 is amended to make clearer the circumstances that justify seeking either emergency or ex parte relief. “Emergency” and “ex parte” are not synonymous, though sometimes both might be justified in a particular situation. Emergency relief may be appropriate where there is urgency, not caused by lack of diligence on the part of the moving party, that makes the normal deadlines in the rules unworkable. Even where exigent circumstances justify shortening the deadlines, they do not generally excuse the giving of notice—or the attempt thereof—to the other side. Rare situations may, however, permit or even demand that notice not be given to the other side before seeking relief from the court. Where destruction of property or evidence is threatened, assets appear to be concealed or are threatened to be concealed, or the abduction of children has occurred or is threatened, or other situations exist where the giving of notice is likely to make any relief impossible to obtain, the court may consider the matter ex parte (without notice to the other side). Rule 3 of these rules provides clear guidelines on seeking ex parte relief. The standards of Rule 65.01 of the Minnesota Rules of Civil Procedure also provide guidance for relief in family law manners. See Minn. R. Civ. P. 65.01 (permitting relief without notice if “immediate and irreparable injury, loss, or damage will result.”).

As is true for temporary restraining orders, any order granted without notice to all parties should be of extremely short duration and the court should hold a hearing upon notice to all parties before continuing or extending the relief. The availability of temporary relief, and the limits on that relief, are set forth in Minn. Stat. § 518.131.

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).

Advisory Committee Comment—2012 Amendments

Orders to show cause should be issued only when it is necessary that a party appear at a hearing. In most situations, the provision of notice of a hearing, and allowing parties to appear if they choose to contest entry of the relief sought, is sufficient. Orders to show cause are specifically authorized, in limited circumstances, by statute. See, e.g., Minn. Stat. §§ 256.87, subd. 1a; 393.07, subd. 9; 518A.73; and 543.20. It is often preferable to use a notice of motion, and if attendance is required, to issue a subpoena to a non-party. See, e.g., Stevens County Social Service Dept. ex rel. Banken v. Banken, 403 N.W.2d 693 (Minn. Ct. App. 1987). Orders to show cause are a recognized part of contempt proceedings. See, e.g., Minn. Stat. § 588.04.

Parties should be aware that improper use of an order to show cause can result in the imposition of sanctions. See, e.g., Nelson v. Quade, 413 N.W.2d 824 (Minn. Ct. App. 1987).

Former Rule 303.06 setting forth notices to be included in a final decree have largely been obviated by statutorily required notices. Notices required under statute are discussed in Rule 308.02 and its accompanying advisory committee comment.