In re the Matter of: Briley Ann Hale, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1077

In re the Matter of:
Briley Ann Hale,
Appellant,

vs.

Steve Ryan Berke,
Respondent.

Filed April 17, 2023
Affirmed
Ross, Judge

Hennepin County District Court
File No. 27-DA-FA-19-4049

Amanda R. Cefalu, Reinhart Boerner Van Dueren S.C., Minneapolis, Minnesota (for
appellant)

Steve Berke, North Miami Beach, Florida (pro se respondent)

Considered and decided by Ross, Presiding Judge; Gaïtas, Judge; and Wheelock,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
The district court granted Briley Hale’s application for a 50-year extension of a
preexisting order for protection against Steve Berke based on Hale’s allegations that he
stole her dog, violated the order for protecti on by contacting her on social media, and
attempted to coerce her with money to cancel her impending wedding to another man. The
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district court granted Hale’s application at a hearing 13 days after Hale served Berke by
mail. Berke moved to vacate the extended order for protection, and the district court granted
his motion. Because service by mail is ineffective until 14 days after mailing under the
Minnesota Domestic Abuse Act, Hale’s service was not effective at the time of the hearing
on her extension application. The district court therefore appropriately granted Berke’s
motion to vacate the extension, and we affirm.
FACTS
The district court issued an ex parte order for protection (OFP) in June 2019, barring
respondent Steve Berke from contact with appellant Briley Hale after Hale alleged that
Berke assaulted Hale’s boyfriend and tried to steal her dog. Hale applied in March 2021 to
extend the OFP for 50 years, alleging that Berke stole her dog while she was on vacation,
contacted her on social media, and contacted her mother by email with an offer to pay Hale
and her mother $500,000 if Hale cancelled her upcoming wedding to another man.
The district court scheduled a hearing for March 2021 and continued the existing
OFP through the hearing date. Because Hale indicated she was having difficulty personally
serving Berke with the petition and temporary order, the district court twice continued the
hearing to allow Hale to complete service or petition for service by alternate means. Hale
filed an affidavit stating that she served Berke by mail on April 28. The district court held
the extension hearing on May 11 . Berke did not appear, and the district court issued an
order in his absence extending the OFP 50 years.
Berke moved the district court on November 23, 2021 to reopen the matter and
vacate the extended OFP, reporting that airport security had detained him based on the
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OFP. He asserted that he had never been properly served and therefore was denied the
opportunity to defend himself against Hale’s accusations. The district court conducted a
hearing and concluded that, when it had conducted the extension hearing only 13 days after
Hale served her application on Berke by mail, the court had lacked personal jurisdiction
based on the Minnesota Domestic Abuse Act’s 14-day timeline for service by mail to
become effective. It held the extension order void. Hale appeals.
DECISION
Hale challenges the district court’s decision to vacate the 50-year OFP-extension
order under Minnesota Rule of Civil Procedure 60.02(d), which allows the court to relieve
a party from a final judgment or order when the judgment is void. We generally review the
district court’s decision to vacate an order under the rule for an abuse of discr etion,
Galbreath v. Coleman, 596 N.W.2d 689, 691 (Minn. App. 1999), and we will reverse if
the district court’s decision rests on a misapplication of law or on unsupported facts,
Northland Temporaries, Inc. v. Turpin, 744 N.W.2d 398, 402–03 (Minn. App. 2008), rev.
denied (Minn. Apr. 29, 2008). But motions seeking to vacate a judgment under Minnesota
Rule of Civil Procedure 60.02(d) on grounds that the judgment is void for lack of personal
jurisdiction do not involve the exercise of discretion. Hengel v. Hyatt, 252 N.W.2d 105,
106 (Minn. 1977). For the following reasons, we hold that the district court properly
applied Rule 60.02(d). Although Hale also raises an argument under Minnesota Rule of
Civil Procedure 60.02(a), we need not address that argument given our decision as to Rule
60.02(d).
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Hale argues that the district court misapplied the Minnesota Domestic Abuse Act,
Minnesota Statutes section 518B.01 (2022), to vacate the 50-year order by concluding that
it lacked personal jurisdiction due to ineffective service. The Minnesota Domestic Abuse
Act authorizes a district court to grant an ex parte OFP when an applicant alleges she faces
immediate and present danger of domestic abuse. Minn. Stat. § 518B.01, subd. 7(a). The
court may extend an OFP issued under the act for up to 50 years if the petitioner meets the
statutory criteria. Id., subd. 6a. But the act requires personal service on the respondent of
“[t]he petition and any order issued under th [e] section other than orders for dismissal.”
Id., subd. 8(a). And if the district court orders service by alternate means, service is
complete 14 days after mailing. Id., subd. 8(c). This appeal turns on whether Hale met the
act’s requirements.
Because Hale had difficulty serving Berke by other means, the district court
extending the OFP allowed her to perform service by mail. Hale mailed Berke her
application, the order for service by alternate means, her affidavit and exhibits, and the
court’s temporary OFP-extension order on April 28, 2021, which was only 13 days before
the scheduled hearing. The district court correctly determined that service was ineffective
under the 14-day deadline. If a court lacks personal jurisdiction ov er a party through a
failure of service, the resulting judgment of the court is void. Ayala v. Ayala, 749 N.W.2d
817, 820 (Minn. App. 2008); see also Galbreath, 596 N.W.2d at 691 (“Generally, a valid
judgment cannot be entered against a party absent lawful service of process on that party.”).
The district court’s inadequate-service finding and its voidness decision are therefore
proper.
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We are not persuaded by Hale’s argument that the extension filings were not the
originating documents for the proceeding and that, therefore, the act’s service requirements
in subdivision 8(c) do not apply. Hale maintains that Ayala, which the district court relied
on, does not apply here. In Ayala, we determined that service of an OFP by publication
was invalid under the Minnesota Domestic Abuse Act because the petitioner failed to
comply with the act’s requirement that she first attempt personal service through law
enforcement before requesting service by publication. 749 N.W.2d at 819. We observed
that the petitioner’s affidavit failed to allege attempted personal service by law enforcement
and that the district court therefore lacked personal jurisdiction. Id. at 821–2 2. Hale
contends that, because Berke was validly subject to the original ex parte OFP issued in
June 2019, Ayala is distinguished because it analyzed only the impact of a failure of service
as to an originating order—the ex parte OFP—and not a subsequent , extension petition and
order. Hale’s argument fails because the act’s personal-service requirement applies to
“[t]he petition and any order issued under this section other than orders for dismissal.”
Minn. Stat. § 518B.01, subd. 8(a) (emphasis added). Because Hale filed a new application
and the district court scheduled a hearing, Hale was required to personally serve Berke with
her application and the temporary extension order. We will not read Hale’s proffered
exception into the statute.
Hale alternatively asks us to apply subdivision 5(d) of the act instead of 8(c).
Subdivision 5(d) directs that “[s]ervice of the notice of hearing must be made upon the
petitioner not less than five days prior to the hearing” when the respondent requests a
hearing after an ex parte OFP. Minn. Stat. § 518B.01, subd. 5(d). This paragraph governs
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service of the notice of hearing, not service of the application and order, and it applies only
when the respondent requests a hearing. The subdivision does not apply.
The district court understandably expressed its concern that its personal-jurisdiction
decision “may be construed as unduly technical in nature.” But it rightly applied the law
because the record establishes that Hale did not properly serve Berke before the hearing
when the district court received evidence and extended the OFP for 50 years. The issues
decided in this appeal bear only on the district court’s lack of personal jurisdiction to extend
the OFP and should not be construed as limiting any party’s right to seek an OFP in the
future.
Affirmed.