In re the Marriage of:

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1865

In re the Marriage of:

Russell Vander Wiel,
Respondent,

vs.

Sharna Ann Wahlgren,
Appellant.

Filed September 3, 2019
Reversed
Jesson, Judge

Ramsey County District Court
File No. 62-FA-17-2657

Linda S. S. de Beer, Jenna K. Monson, de Beer & Associates, P.A., Lake Elmo, Minnesota
(for respondent)

Kay Nord Hunt, Michelle K. Kuhl, Lommen Abdo, P.A., Minneapolis, Minnesota; and

Evon M. Spangler, Spangler and de Stefano, PLLP, St. Paul, Minnesota (for appellant)

Janet Goehle, Roseville, Minnesota (guardian ad litem)

Considered and decided by Smith, Tracy M., Presiding Judge; Sc hellhas, Judge; and
Jesson, Judge.
S Y L L A B U S
When an adverse party requests the appointment of a guardian ad litem for a party
who is not an infant and has never been adjudicated as incompet ent, rule 17.02 of the
Minnesota Rules of Civil Procedure entitles the party to notice and an opportunity for a
hearing before a guardian ad litem is appointed.

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O P I N I O N
JESSON, Judge
After appellant Sharna Ann Wahlg ren requested multiple extensio ns of discovery
deadlines during the marital-dissolution proceeding, the district court appointed a guardian
ad litem for Wahlgren. Because the district court did not prov ide Wahlgren with notice
and an opportunity for a hearing before appointing a guardian ad litem, as required by rule
17.02 of the Minnesota Rules of Civil Procedure, we reverse.
FACTS
Appellant Sharna Ann Wahlgren ( wife) married respondent Russell Vander Wiel
(husband) on July 5, 1996. After 21 years of marriage, the par ties separated in
October 2017. That same month, husband filed for divorce. The parties do not have any
children, and the primary issue in their dissolution proceeding is the distribution of
financial assets.
In May 2018, the parties attempte d mediation but reached no ag reement. As the
case headed toward trial, wife requested several continuances and extensions of discovery
deadlines from the district court, including one on June 27, 20 18. The next day, while
attending husband’s scheduled deposition, wife experienced a me dical emergency
rendering her unresponsive. Wife was transported by ambulance to the hospital. After
some medical tests, doctors released her from the hospital the next day.
Shortly after, in early July, husband filed a motion to compel discovery, and the
district court granted wife a short continuance. Later that month, husband filed an amended
motion to compel discovery. In response, wife submitted an affidavit explaining that since

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her hospitalization, she was working with doctors to deal with “ongoing significant health
issues” and trying to decide if she needed to take some time away from work. At a hearing
on the amended motion to compel discovery, husband orally reque sted that the district
court appoint a guardian ad litem for wife in order to allow th e dissolution proceeding to
move forward. Wife’s counsel noted that wife had recently rece ived a mental-health
diagnosis and that she was about t o begin a three-week, quasi-r esidential program to
address her mental health. The d istrict court denied husband’s request to appoint a
guardian ad litem for wife and a llowed wife two weeks to respon d to discovery requests,
but denied wife’s request to place the case on inactive status. In denying husband’s request
to appoint a guardian ad litem, the district court explicitly found that “[t]here is nothing in
the record that indicates that [wife] is incompetent to proceed requiring the appointment of
a [g]uardian.” The district court set a trial date for early November 2018.
In October 2018, wife again requested that discovery deadlines be extended and that
the trial be delayed until Janua ry 2019. In support of her req uest, wife submitted a
confidential-information form, in cluding a letter from her doct ors detailing her
mental-health diagnoses and stating that participation in the case was detrimental to wife’s
mental health. The parties participated in an off-the-record telephone conference with the
district court, and shortly after, without providing wife with written notice or a hearing on
the record, the district court issued an order appointing a gua rdian ad litem for wife and
rescheduling the trial. Wife appeals, challenging the appointment of a guardian ad litem.1

1 In an earlier order, this court determined that it has jurisdi ction over this appeal. After
wife filed this appeal, husband informed the district court tha t he was willing to stipulate

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ISSUE
Was the procedure used to appoint the guardian ad litem improper?

ANALYSIS
Wife contends that the district court erred by appointing a guardian ad litem for her
without first providing her with notice and a hearing, which she argues are required by rule
17.02 of the Minnesota Rules of Civil Procedure and due process . In order to evaluate
wife’s argument, we must interpret the Minnesota Rules of Civil Procedure, and address a
question of law, which we consider de novo. Gams v. Houghton, 884 N.W.2d 611, 616
(Minn. 2016).
We begin our interpretation of r ule 17.02 by examining the text of the rule. Sela
Invest. Ltd., LLP v. H.E. , 909 N.W.2d 344, 347 (Minn. App. 2018). In doing so, we
generally interpret words according to their ordinary meaning. Cox v. Mid-Minn. Mut. Ins.
Co., 909 N.W.2d 540, 543 (Minn. 2018). The rule, entitled, “Infan ts or Incompetent
Persons,” first provides:
Whenever a party to an ac tion is an infant or is
incompetent and has a representative duly appointed under the
laws of this state or the laws of a foreign state or country, t he
representative may sue or defend on behalf of such party. A
party who is an infant or is incompetent and is not so

to an order vacating the appointment of the guardian ad litem. He also filed a motion to
dismiss this appeal as moot, indicating that he does not oppose the removal of the guardian
ad litem. This court denied that motion, reasoning that in family matters, district courts are
required to exercise independent judgment and are not bound by parties’ stipulations, so
husband’s willingness to stipulate to removal of the guardian a d litem did not render the
appeal moot. The district court stayed the dissolution proceeding pending the outcome of
this appeal. Husband subsequently did not file a brief.

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represented shall be represented by a guardian ad litem
appointed by the court in which the action is pending or is to
be brought.

Minn. R. Civ. P. 17.02. This provision acknowledges that, in cases where a party is either
an infant or incompetent, the party’s legal representative may sue or defend against a suit
on the party’s behalf. But the provision takes an additional step: it states that if a party to
a lawsuit is an infant or incompetent person without a legal representative, the court shall
appoint a guardian ad litem to represent that party in the action.
2 Id.
Once the question of the necessity of a guardian ad litem is r aised, the rule describes
the process for such an appointment. Any person may apply “und e r o a t h ” f o r t h e
appointment of a guardian ad litem, including the adverse party. Id. And the rule specifies
information that such an application must contain. Id. Then, the rule establishes a
procedural framework for deciding a request for appointment of a guardian ad litem:
If the appointment is applied for by the party or by a spouse,
parent, custodian or testamentary or other guardian of the
party, the court may hear the app lication with or without
notice. In all other cases written notice of the hearing on the
application shall be given at such time as the court shall
prescribe, and shall be served upon the party, the party’s

2 The standard used for determining incompetence is not identifi ed in rule 17.02, and we
do not reach the definition of incompetence for the purposes of this rule. We acknowledge
that in some cases where this rule applies, a party may have be en deemed incompetent
through separate proceedings. But we also read the rule as per mitting the district court to
independently find a party incompetent. See Fonner v. Fairfax Cty., VA, 415 F.3d 325, 330
(4th Cir. 2005) (finding that “[n ]othing in [federal rule 17(c) ] prohibits the district court
from appointing a guardian ad litem to represent a person not p reviously adjudicated as
incompetent through a state proceeding); see also Cox , 909 N.W.2d at 544 (stating that
federal cases interpreting analogous portions of a federal rule of civil procedure are
instructive).

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spouse, parent, custodian and testamentary or other guardian,
if any . . . .

Minn. R. Civ. P. 17.02 (emphasis added).
3 Based on the language of this portion of rule
17.02, if certain family members—including a spouse—or a legal representative are
seeking appointment of a guardi an ad litem, a district court ma y consider and decide the
request without providing notice to the party for whom a guardian ad litem is being sought.
That happened here. Husband so ught the appointment of a guard ian ad litem for
wife to expedite and facilitate the dissolution proceeding. Hu sband first orally requested
the appointment of a guardian ad litem at a hearing on one of h is discovery motions. But
the district court denied the request at that time, finding that nothing in the record suggested
wife was incompetent so as to re quire the appointment of a guar dian ad litem. Several
months later, after wife request ed an extension of discovery, t he district court held an
off-the-record telephone conference and subsequently issued a w ritten order appointing a
guardian ad litem for wife. There is no indication of an application for a guardian ad litem
made under oath. Wife received no written notice of such an ap plication. And no
opportunity for a hearing was provided to wife.
Our analysis of rule 17.02 lead s us to conclude that wife was entitled to notice and
a hearing before the district court appointed a guardian ad litem for her. Although the text
of rule 17.02 allows, in limited circumstances, a district court to appoint a guardian ad litem
without notice and a hearing, we conclude that such a limited e xception does not apply

3 Rule 17 of the Federal Rules of Civil Procedure does not conta in a provision similar to
the notice requirement and its exception found in rule 17.02 of the Minnesota Rules of
Civil Procedure.

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when an adverse party seeks the appointment of a guardian ad litem for a party, regardless
of familial relationships.
We reach this conclusion by first reading the text of rule 17. 02 as a whole. The text
of the rule states that an adverse party may seek the appointment of a guardian ad litem for
the opposing party. Minn. R. Civ. P. 17.02. And later in the rule, district courts are given
permission to hear and decide a request for the appointment of a guardian ad litem without
notice if certain immediate family members seek the appointment . Id. But the rule does
not provide that same exception to the notice requirement for adver se parties.
Accordingly, we read the rule as implicitly requiring a district court to provide notice when
an adverse party seeks the appointment of a guardian ad litem, even if the adverse party is
one of the identified immediate family members.
Our reading of the rule is bol stered by the history and purpose of the notice provision
found in rule 17.02. Cox, 909 N.W.2d at 544 (providing that when interpreting a rule of
civil procedure, courts may consider the rule’s history and purpose). To this end, we first
examine the evolution of rule 17.02 in Minnesota, and then turn to the purpose for including
the notice provision in the rule.
We begin with the history of rule 17.02. The Minnesota Suprem e Court first
adopted the Minnesota Rules of C ivil Procedure in 1952. Minn. R. Civ. P. 86.01. The
1952 version of rule 17.02 permitted the appointment of a guardian ad litem for infants and
incompetent persons and contained a notice provision that stated:
When application is properly made by an infant [on] his
own behalf, or by the general guardian of an infant or
incompetent person, no notice shall be required. In other cases,

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notice of such application, des ignating the time and place of
hearing, shall be given to the general guardian of such party or
person or to such relative, advisor or friend as the court shal l
designate. The court may also require that like notice be given
to such party or person himself. The court shall specify the
time and manner of giving such notices.

Minn. R. Civ. P. 17.02(5) (1953). In the original version of the rule, the only instances in
which notice was not required were if an infant or general guar dian requested the
appointment of a guardian ad litem. In any other case, the rul e required notice to be
provided and permitted the court to require notice be given to the party for whom the
guardian ad litem was sought.
But the rule evolved. In 1959, rule 17.02 was amended to incl ude the current
language on notice. The advisory committee note explaining the amendment stated that
“[t]he amendment expands the present rule and conforms it more nearly to probate court
procedure for the appointment of a general guardian.” Minn. R. Civ. P. 17.02 1959
advisory comm. note. This note indicates that the purpose of amending the rule to include
the current language about notice was to make the appointment p rocess under rule 17.02
align with the procedure used to appoint a general guardian in probate court. And at the
time the notice language was added to rule 17.02, the statute g overning notice in
guardianship proceedings in prob ate court required notice of a hearing to the person for
whom a guardian was sought.
4 Minn. Stat. § 525.55 (1957) (repealed 2003).

4 The statute provided a limited number of exceptions to the notice requirement not relevant
here, including if a person sought a guardian for himself or herself or if a parent or custodial
guardian sought appointment of a guardian for an individual und er the age of 14. Minn.
Stat. § 525.55 (1957) (repealed 2003).

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Finally, although our conclusion is based on the text, history , and purpose of
rule 17.02, we observe that Wahlgren has an important liberty i nterest in not having a
guardian ad litem appointed for her. Litigants possess “libert y interests in avoiding the
stigma of being found incompet ent, and in retaining personal co ntrol over the litigation.”
Sturdza v. United Arab Emirates , 562 F.3d 1186, 1188 (D. C. Cir. 2009) (quotation
omitted). And here, the distric t court gave Wahlgren’s guardian ad litem the authority to
conduct an independent investiga tion and advise the district co urt regarding several key
matters in the dissolution proceed ing, including p roperty divis ion, debt allocation, and
spousal maintenance. Because Wah lgren has a significant libert y interest in maintaining
personal control over her own stra tegies and decisions in the d issolution proceeding, we
note that our reading of the rul e is consistent with the requir ements of due process. See
Mathews v. Eldridge, 424 U.S. 319, 348, 96 S. Ct. 893, 909 (1976) (noting that due process
generally requires adequate notice and the opportunity to be heard).
Considering the text of rule 17.02, in light of its historical context and purpose, we
conclude that notice and an opportunity for a hearing are fundamental steps that a district
court must take before appointing a guardian ad litem. And while those steps may not be
required in very limited circumst ances under rule 17.02, we con clude that notice and an
opportunity for a hearing are always required when an adverse party seeks appointment of
a guardian ad litem for a party who is not an infant and who ha s never been previously
adjudicated as incompetent. 5 Our conclusion is consistent with current probate-court

5 Our conclusion here does not limit a party’s ability to reques t or stipulate to the
appointment of a guardian ad litem without notice and a hearing.

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procedure and scholarship considering rule 17.02. See Minn. Stat. § 524.5-308(a) (2018)
(requiring notice be provided to the individual for whom a guar dian is sought and stating
that “failure to serve the res pondent with a notice substantial ly complying with this
paragraph precludes the court fr om granting the petition” for g uardianship); 1 David
F. Herr & Roger S. Haydock, Minnesota Practice § 17.7, at 609 (6th ed. 2017) (noting that
“[i]f the application for appointment [of a guardian ad litem] is made by any other person,
or by an adverse party in the litigation or the adverse party’s lawyer, notice must be given
to all parties” (emphasis added)).
Here, the district court missed those fundamental steps. Desp ite the fact that
husband, the adverse party, sought appointment of a guardian ad litem for wife—who had
never been adjudicated to be inc ompetent—wife was not provided with notice or an
opportunity for a hearing before t he district court appointed a guardian ad litem. And
because this lack of process was contrary to the procedure set out in rule 17.02, read as a
whole and in light of its history, we reverse the appointment.
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D E C I S I O N
The protections offered by the appointment of a guardian ad li tem for infants or
incompetent persons ensure that the interests of that person are sufficiently represented and
considered. But rule 17.02 of the Minnesota Rules of Civil Procedure requires notice and
the opportunity for a hearing when an adverse party seeks appoi ntment of a guardian ad

6 Because we reverse the appointment of the guardian ad litem on t h e b a s i s o f t h e
requirements of rule 17.02, we do not reach wife’s arguments regarding the sufficiency of
the findings made by the district court.

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litem for a party in a suit never previously determined to be i ncompetent. Accordingly,
when an adverse party requests the appointment of a guardian ad litem for a party who is
not an infant and has never been adjudicated incompetent, rule 17.02 entitles the party to
notice and an opportunity for a h earing before a guardian ad li tem is appointed. Because
that procedure was not followed here, we reverse.
Reversed.