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STATE OF MINNESOTA IN COURT OF APPEALS A07-0657 Tina Ayala, petitioner, Respondent, vs. Carlos Ayala, Appellant. Filed May 27, 2008 Reversed and vacated Ross, Judge Ramsey County District Court File No. F906301167 Thomas A. Gilligan, Jr., Laura R. Gurney, Murnane Brandt, 30 East Seventh Street, Suite 3200, St. Paul, MN 55101 (for respondent) Anthony Bushnell, The Bushnell Law Firm, 116 99th Avenue Northeast, Blaine, MN 55434-1325 (for appellant)

Considered and decided by Ross, Presiding Judge; Lansing, Judge; and Johnson, Judge. SYLLABUS Service of an order for protection by publication under the Minnesota Domestic Abuse Act, section 518B.01, subdivision 5(f), is ineffective unless, first, there has been an attempt at personal service by law-enforcement personnel that has failed because the respondent concealed himself and, second, either a copy of the petition and notice of hearing has been mailed to the respondent's residence or the petitioner does not know the address.

OPINION ROSS, Judge Carlos Ayala appeals from the district court's denial of his request to vacate an ex parte order for protection (OFP) issued against him. He argues that he was denied his statutory right to challenge the OFP because he was not properly served notice of the petition and hearing as required by the Minnesota Domestic Abuse Act, Minnesota Statutes section 518B.01, subdivision 5(f) (2006). He argues alternatively that even if the statute does not require attempted personal service before the district court may authorize service by publication, the statute violates his constitutional right to due process. Because the statute does not recognize service by publication unless there was first a failed attempt at personal service by law-enforcement personnel that was thwarted because of concealment to avoid service, we hold that publication was not effective service, and we do not reach the constitutional issue. FACTS Tina and Carlos Ayala are divorced and share custody of their four children. Their acrimony created difficulty when transferring their children between homes. The

difficulty increased when Carlos Ayala moved from South St. Paul to Burnsville on September 8, 2006, because Tina Ayala did not know his new address. About a month after his move, Carlos Ayala failed to drop the children off at school. Tina Ayala learned of the absence and called the police, who telephoned Carlos Ayala using the cellular telephone number that Tina Ayala provided police. He twice hung up on the police officer, and he refused to disclose his address. Between calls with 2

the officer, Carlos Ayala called Tina Ayala and allegedly berated her. He returned the children to Tina Ayala's residence later that day. Based on this episode and alleged threats made by Carlos Ayala, Tina Ayala filed for and obtained an ex parte OFP against him on October 4, 2006. Because Tina Ayala denied knowing Carlos Ayala's address, she asked the district court to allow service of the OFP by publication. On an affidavit form provided by Ramsey County, Tina Ayala checked a box indicating that she did not know Carlos Ayala's address. She did not check the box indicating that personal service was unsuccessful because Carlos Ayala concealed himself to avoid service of process, or the box indicating that the petition and notice were mailed to Carlos Ayala's address. The district court ordered service by publication based on the affidavit. Law-enforcement personnel had not attempted to serve notice of the OFP or to mail notice to Carlos Ayala's previous address. Notice was first published on October 19, 2006. Carlos Ayala learned of the OFP two months later, in December 2006. This was too late for him to challenge the merits of the OFP. Under Minnesota Statutes section 518B.01, subdivision 7(c) (2006), Carlos Ayala had a right to seek a hearing to modify or vacate the OFP for only five days after service of the order was complete. He challenged the validity of the OFP in district court, arguing that Minnesota Statutes section 518B.01, subdivision 5(f) (2006), requires attempted personal service before notice by publication may be effective. Instead of addressing Carlos Ayala's legal arguments, the district court treated his motion as a motion to vacate an order for fraud under rule 60.02 of the Rules

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of Civil Procedure, which allows the district court to relieve a party from final judgment if obtained by fraud. The district court denied the motion, finding no fraud. Carlos Ayala appeals. ISSUE Does the Minnesota Domestic Abuse Act allow service of an ex parte order for protection by publication to be effective before personal service has been attempted but intentionally avoided by the respondent's concealment or other behavior? ANALYSIS Carlos Ayala argues that the personal jurisdiction required for an OFP to be effective is lacking because Tina Ayala did not comply with the statutory prerequisites for service of process before the district court authorized service by publication. Whether service of process was proper is a question of law that we review de novo. Amdahl v. Stonewall Ins. Co., 484 N.W.2d 811, 814 (Minn. App. 1992), review denied (Minn. July 16, 1992). A judgment is void if the issuing court lacked personal jurisdiction over a party through a failure of service that has not been waived. Bode v. Minn. Dep't of Nat. Res., 594 N.W.2d 257, 261 (Minn. App. 1999). Carlos Ayala did not waive service, so we address the validity of the service on the merits. The Minnesota Domestic Abuse Act includes the general requirement that "any order issued under [it] shall be served on the respondent personally." Minn. Stat.

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