McCleod v. McCleod

Full title: In re the Marriage of Eugene Donald McLEOD, petitioner, Appellant, v…

Court: Minnesota Court of Appeals

Date published: Jul 26, 1988

426 N.W.2d 494 (Minn. Ct. App. 1988)

Opinion

No. C8-88-1351.

July 26, 1988.

Appeal from the District Court, Ramsey County, Kenneth J. Fitzpatrick, J.

Deborah J. Blees, McCullough, Dyrud Smith, St. Paul, for petitioner-appellant.

Donna Rae Johnson, St. Paul, for respondent.

Considered at Special Term and decided by WOZNIAK, C.J., and FOLEY, and NORTON, JJ., without oral argument.

SPECIAL TERM OPINION

WOZNIAK, Chief Judge.

FACTS

Appellant filed this appeal on June 24, 1988, seeking review of a May 24, 1988 order partially vacating the parties' 1985 dissolution judgment and decree. This court questioned jurisdiction and directed the parties to file memoranda on the appealability of the May 24, 1988 order. Appellant claims the order is appealable, and in the alternative seeks discretionary review. Respondent moves to dismiss the appeal.

DECISION

Orders vacating appealable judgments were traditionally appealable under former Minn.R.Civ.App.P. 103.03(d), which permitted appeal from "an order involving the merits of the action or some part thereof." See Moberg v. Moberg, 347 N.W.2d 791, 794 (Minn. 1984) (order vacating dissolution judgment was appealable under former clause (d), although order also continued matters for later hearing). However, former clause (d) of Rule 103.03 was deleted when the new Rules of Civil Appellate Procedure became effective in August 1983. The appeal in Moberg was filed under the former rules and the holding is no longer controlling. No current provision of Rule 103.03 authorizes an appeal from an order vacating a judgment, and therefore the appeal must be dismissed. See Minn.R.Civ.App.P. 103.03, comment ("There is a right of appeal only from a judgment or an order enumerated in Rule 103.03").

Appellant also seeks discretionary review, but failed to establish a compelling reason for this court to extend such review. Appellant may seek review of the May 24 order on appeal from the final judgment. See Minn.R.Civ.App.P. 103.04. Appellant's request for discretionary review is denied, respondent's motion to dismiss is granted, and this appeal is dismissed.

Appeal dismissed.