In re the Marriage of: Ariel Theresa Bedner, n/k/a Ariel Theresa Wright, Appellant,

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1535

In re the Marriage of:
Ariel Theresa Bedner, n/k/a Ariel Theresa Wright,
Appellant,

vs.

Todd David Bedner,
Respondent.

Filed June 15, 2020
Appeal dismissed
Bratvold, Judge

Hennepin County District Court
File No. 27-FA-16-149

Ariel Wright, Stillwater, Minnesota (pro se appellant)

Bradley S. Almen, Minneapolis, Minnesota (for respondent)

Considered and decided by Reyes, Presiding Judge; Bratvold, Judge; and Bryan,
Judge.
S Y L L A B U S
When an appeal is taken from a nonappealable order, it may not be construed to be
from an appealable order or judgment if appellant served and filed the notice of appeal
after the deadline to appeal from the appealable order or judgment.
O P I N I O N
BRATVOLD, Judge
In post-decree child-custody modification proceedings between appellant Ariel
Theresa Bedner n/k/a Ariel Theresa Wright and respondent Todd David Bedner, the district
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court modified custody of the parties’ child, granting sole legal and sole physical custody
to Bedner. Wright then moved for a new trial, and the district court denied her motion as
untimely. Wright appeals the order denying her motion for a new trial. We dismiss this
appeal for two reasons. First, an order denying a motion for a new trial in a post-decree
custody-modification proceeding is not appealable. Second, we cannot construe Wright’s
appeal to be from the order modifying custody because Wright served and filed her notice
of appeal after the time to appeal had expired.
FACTS
The parties stipulated to a judgment dissolving their marriage in February 2016, and
the judgment awarded Wright sole legal and sole physical custody of the parties’ minor
child. The parties later stipulated to an order granting them joint legal and joint physical
custody. In March 2018, Bedner asked the district court to grant him sole legal and sole
physical custody. The district court held a two-day evidentiary hearing and, by order filed
June 12, 2019, granted Bedner’s motion.
On June 13, 2019, Bedner electronically served (e-served) Wright with written
notice of filing of the order modifying custody . On July 12, 2019, Wright tried to
electronically file (e-file) a notice of motion and motion for a new trial. The e-filing system
recorded Wright’s attempt, stating that “[o]ne or more documents could not be processed.”
On July 16, 2019, Wright successfully e-filed her new-trial motion. By order filed
July 26, 2019, the district court denied Wright’s motion for a new trial as untimely. The

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district court noted that Wright’s July 12 effort to e-file appeared to be a “failed attempt.”
The district court also stated that, “[r]egardless of the reason for [Wright’s] failure to timely
serve her motion, it was not in fact served until July 16, 2019.”
Wright served and filed a notice of appeal on September 24, 2019, seeking review
of the district court’s order denying her motion for a new trial.
ISSUE
Does the court have jurisdiction over this appeal?
ANALYSIS
Wright’s brief to this court asks us to reverse the order modifying custody, which is
an appealable order. See Minn. R. Civ. App. P. 103.03(h). But because Wright appealed
from the order denying her motion for a new trial, we question our jurisdiction. Jurisdiction
“is a threshold question” that “may be raised at any time by the parties or sua sponte by the
court.” Dead Lake Ass’n, Inc. v. Otter Tail C ounty, 695 N.W.2d 129, 134 (Minn. 2005).
“Jurisdiction refers to a court’s power to hear and decide disputes.” McCullough & Sons,
Inc. v. City of Vadnais Heights , 883 N.W.2d 580, 584 (Minn. 2016) (quotation omitted).
We review our appellate jurisdiction de novo. Howard v. Svoboda, 890 N.W.2d 111, 114
(Minn. 2017).
This court has jurisdiction over appeals that are timely served and filed from an
appealable judgment or order. 1 See Petersen v. Petersen, 352 N.W.2d 797, 797 (Minn.

1 The supreme court has observed that, “[w]hile the rules do not expressly state that failure
to timely file is a jurisdictional defect, the 1998 advisory committee comment to rule
103.01 of the Rules of Civil Appellate Procedure provides that ‘timely filing the notice of
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App. 1984) (holding court of appeals lacked jurisdiction over an untimely appeal); see also
Minn. R. Civ. App. P. 103.03 (listing appealable judgments and orders); Minn. R. Civ.
App. P. 104.01, subd. 1 (providing the time for filing and service of appeal). Thus, we
begin our analysis by asking whether Wright takes an appeal from an appealable order.
Because we conclude that Wright’s notice of appeal did not seek review of an appealable
order, we consider whether we may con strue Wright’s appeal to be from an appealable
order or judgment.
Before beginning our analysis, we recognize that “procedural rules should be
construed to preserve the right to an appeal.” In re Welfare of Child of R.K., 901 N.W.2d
156, 161 (Minn. 2017). At bottom, the “Rules of Civil Procedure reflect a preference that
actions be determined on the merits,” and “are to be liberally construed so as to serve the
interests of justice.” Commandeur LLC v. Howard Hartry, Inc., 724 N.W.2d 508, 512
(Minn. 2006) (quotations omitted).
A. The order denying Wright’s new-trial motion is not appealable.
Generally, an order denying a motion for a new trial is appealable. Minn. R. Civ.
App. P. 103.03(d) (providing an appeal may be taken from an order granting or denying
modification of custody) . But we have held on similar facts that an order denying a

appeal with the clerk of the appellate courts and timely service on the adverse party are the
jurisdictional steps required to initiate an appeal.’” In re Welfare of J.R., Jr., 655 N.W.2d
1, 3 (Minn. 2003). The supreme court has also stated that, in rare cases, it may take
jurisdiction over an untimely appeal. Id. at 4. In contrast, the court of appeals has generally
declined to do so. See, e.g., Township of Honner v. Redwood County, 518 N.W.2d 639, 641
(Minn. App. 1994) (“[W]e conclude that this court lacks authority to accept the untimely
certiorari appeal from the county board’s decision in the interests of justice.”), review
denied (Minn. Sept. 16, 1994).
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new-trial motion in post-decree custody -modification proceedings is not appealable
because the motion “is not authorized.” Huso v. Huso, 465 N.W.2d 719, 721 (Minn. App.
1991). Indeed, a motion for a new trial “is an anomaly where there has been no trial, and
few post-decree proceedings will constitute a ‘trial.’” Id. (citing Erickson v. Erickson,
430 N.W.2d 499, 500 n.1 (Minn. App. 1988)).
The reason for this is straightforward: A motion to modify custody arises under
Minn. Stat. § 518.18 (2018), which is a special proceeding. See Angelos v. Angelos,
367 N.W.2d 518, 520 n.2 (Minn. 1985) (defining special proceeding as “commenced
independently of a pending action by petition or motion, upon notice, in order to obtain
special relief”). “Generally, in special proceedings, the proper appeal is from the original
order or judgment granting or denying relief ,” and an order denying a motion for a new
trial “is not independently appealable.” Huso, 465 N.W.2d at 721; see also Minn. R. Civ.
App. P. 103.03(g) (allowing an appeal to be taken from a final order in a special
proceeding).2 That is the case here. Wright’s new-trial motion was not authorized because

2 Huso recognized an exception to this general rule about special proceedings when the
legislature “has indicated that a special proceeding proceed as other civil cases.”
465 N.W.2d at 721. But Huso concluded that the legislature did not indicate that
proceedings to modify custody under Minn. Stat. § 518.18 are to proceed as other civil
cases. Id. In doing so, Huso noted that the legislature has indicated that some types of
special proceedings may proceed as “other civil proceedings” and, in those cases, an order
denying a motion for new trial is appealable. Id. (citing caselaw recognizing orders denying
new-trial motions are appealable for commitment and mandamus proceedings based on
statutory language). After examining the statutes authorizing motions to modify custody,
Huso held that the legislature did “not provide that these matters are to be tried or appealed
as in other civil cases.” Id.
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it followed a special proceeding to modify custody under section 518.18. See id.3 Thus, the
order denying Wright’s motion for a new trial is not appealable.4
B. Wright’s appeal cannot be construed to be from the order modifying
custody.

We may construe an a ppeal from a nonappealable order to be from an appealable
order or judgment. See Huso, 465 N.W.2d at 721; see also Contractors Edge, Inc. v. City
of Mankato, 863 N.W.2d 765, 767 n.1 (Minn. 2015) (holding appeal from a nonappealable
order to be taken from an appealable judgment because appellate courts will construe
“notices of appeal liberally in favor of their sufficiency”). But we cannot do so if the time
to appeal from the appealable order or judgment expired before the notice of appeal was
served and filed. See Huso, 465 N.W.2d at 721 (concluding that time to appeal from an
appealable order had expired before notice of appeal was filed and dismissing appeal); see
generally T.A. Schifsky & Sons, Inc. v. Bahr Constr., LLC , 773 N.W.2d 783, 790 (Minn.
2009) (“[T]his court and the court of appeals have construed appeals from orders for

3 It is well-recognized that motions for new trial are not allowed in custody-modification
proceedings, as discussed by attorneys in Minnesota Practice and the state bar journal. See
14 Michael P. Boulette, Minnesota Practice § 5.58 (3d ed. Nov. 2019 update); Joseph
Trojack, Getting Your Appellate Ducks in a Row: Preserving Issues Subsequent to Trial,
67 Bench & Bar of Minn., Jan. 2010, at 45.

4 This court decided Huso before the supreme court amended rule 103.03 in 2000 to include
Minn. R. Civ. App. P. 103.03(h), which states that appealable rulings include “an order
that grants or denies modification of custody.” The advisory committee comment
associated with the 2000 amendment states that “[t]his change is not intended to expand
appealability of otherwise unappealable orders, but rather, is meant to have the rule
correctly identify these orders as appealable.” Minn. R. Civ. App. P. 103.03 2000 advisory
comm. cmt. Because the 2000 amendment of rule 103.03 did not make any previously
nonappealable orders appealable, the amendment is not relevant to our analysis.
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judgment as being taken from judgments entered pursuant to the order, where the judgment
is entered before the notice of appeal is filed.”). In determining whether we may construe
Wright’s appeal to be from the order modifying custody, we first determine the deadline to
appeal from that order.
The time to appeal from an appealable order is “within 60 days after service by any
party of written notice of its filing” unless a statute provides a different time. Minn. R. Civ.
App. P. 104.01, subd. 1. No statute provides a different time to appeal from orders
modifying custody. Some post-decision motions, however, toll the time to appeal. See
Minn. R. Civ. App. P. 104.01, subd. 2. If a party serves and f iles a “proper and timely”
post-decision motion, “the time for appeal of the order or judgment that is the subject of
such motion runs for all parties from the service by any party of notice of filing of the order
disposing of the last such motion outstanding.” Id. Only post-decision motions of “a type
specified” in rule 104.01 may toll the time to appeal. Id. Rule 104.01 specifies that a motion
for new trial under Minn. R. Civ. P. 59 is a tolling motion. Id., subd. 2(d).
Because Wright filed a new-trial motion, we consider whether her motion tolled the
time to appeal. To do so, it must have been both timely and proper. See id., subd. 2; see
also Madson v. Minn. Mining & Mfg. Co., 612 N.W.2d 168, 171 (Minn. 2000) (holding
time to appeal from summary judgment was tolled by appellant’s motion to vacate under
rule 60). To be timely, a notice of motion for a new trial must be served within 30 days
after service by a party of notice of filing of the decision. Minn. R. Civ. P. 59.03. Bedner
served notice of filing of the order modifying custody on June 13, 2019. Wright, however,
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did not serve her motion for new trial until July 16, 2019, more than 30 days after June 13,
2019. Thus, Wright’s new-trial motion was not timely.
Wright’s unsuccessful attempt to e-file the new-trial motion on July 12 does not
alter our analysis. “Service is complete upon completion of the electronic transm ission of
the document to the E-Filing System notwithstanding whether the document is
subsequently rejected for filing by the court administrator.” Minn. R. Gen. Prac. 14.03(e).
The district court found that Wright failed in her attempt to e-file the new-trial motion on
July 12 and did not e-serve Bedner until July 16. Wright does not challenge these findings
on appeal and they are supported by the record.
In her brief to this court, Wright refers to a “technical ‘glitch’ of the E-filing system”
and mentions rule 14.01(c)(1), which authorizes a district court to deem a document filed
on “the date and time it was first attempted to be transmitted electronically.” Minn. R. Gen.
Prac. 14.01(c)(1). This rule allows a party to file a motion and show that e-filing or
e-service was not completed because of, among other things, “technical problems
experienced by the sending party or E-Filing System.” Id. Relief is available “[u]pon
motion.” Id. But Wright did not move for relief under this rule in district court and we
cannot decide the issue for the first time on appeal. See Thiele v. Stich, 425 N.W.2d 580,
582 (Minn. 1988) (holding appellate courts “generally consider only those issues that the
record shows were presented and considered by the trial court in deciding the matter before
it” (quotation omitted)).
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For these reasons, Wright’s untimely new-trial motion did not toll the time to appeal
from the order modifying custody.5 We next consider whether Wright served and filed her
notice of appeal before the deadline to appeal from the order modifying custody.
As mentioned above, Bedner e-served Wright with notice of filing of the order
modifying custody on June 13, 2019. Bedner’s e-service became effective upon
transmission, see Minn. R. Gen. Prac. 14.03(e), meaning that Wright had to serve and file
her notice of appeal no later than August 12, 2019. See Minn. R. Civ. App. P. 104.01,
subd. 1. Wright, however, served and filed her notice of appeal on September 24, 2019 .
Thus, Wright failed to serve and file her notice of appeal before the deadline to appeal from
the order modifying custody . And this court cannot extend the time to appeal. Minn. R.
Civ. App. P. 126.02; Township of Honner, 518 N.W.2d at 641. Thus, Wright’s appeal is
not timely.
Before closing, we observe that Wright is a self -represented litigant and may find
the appellate rules difficult to understand. While we do not know the financial
circumstances of these parties, we recognize that the ability to pay for private legal counsel

5 As a result, we need not determine whether Wright’s new-trial motion was proper. The
supreme court has held that “[i]n order to be ‘proper,’ the posttrial motion must also be
‘authorized.’” Madson, 612 N.W.2d at 172. In Huso, we held that a new-trial motion is
“not authorized” in post-decree modification proceedings. 465 N.W.2d at 721. But the
applicability of Huso’s ruling for tolling motions is unclear for two reasons. First, this court
decided Huso in 1991, before the supreme court adopted the tolling rule in 1998
amendments. See Minn. R. Civ. App. P. 104.01 1998 advisory comm. cmt. Second,
Madson held that “the test for determining whether a motion is authorized, and therefore
proper, is to determine whether on the face of the document the party has filed a motion
that is expressly allowed under subdivision 2.” 612 N.W.2d at 172. In applying this test to
the appeal before it in Madson, the supreme court held that appellant’s motion was proper
because it was of a type specified in rule 104.01, subdivision 2. Id.
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is beyond the reach of many who, therefore, have no practical alternative to representing
themselves. Yet we hold self -represented litigants to the same rules and standards as
attorneys. Davis v. Danielson, 558 N.W.2d 286, 287 (Minn. App. 1997), review denied
(Minn. Mar. 18, 1997).
With full appreciation of the importance of the right to appeal, the supreme court
sought to eliminate procedural traps when amending the appellate rules to include tolling
motions. Huntsman v. Huntsman , 633 N.W.2d 852, 856 (Minn. 2001). But litigants must
follow the appellate rules in a timely manner to avail themselves of the right to appeal. We
conclude that Wright did not succumb to a procedural trap; rather, she failed to timely serve
and file both her new-trial motion and her notice of appeal and has therefore forfeited her
right to appeal.
D E C I S I O N
The order denying Wright’s motion for a new trial is not appealable because she
filed it in a post-decree modification proceeding. Because Wright attempted to appeal from
the order denying her new-trial motion, we consider whether we may construe her appeal
to be taken from the order modifying custody, which was appealable. But the time to appeal
from the order modifying custody expired before Wright served and filed her notice of
appeal, and therefore we cannot construe her appeal to be from an appealable order. Thus,
we must dismiss this appeal.
Appeal dismissed.