Newsletters::2005 December
From R-KIDS of MN and GPF
Child support/custody changes approved
For the first time in more than two decades, the state's child support and custody laws have received an overhaul. The legislation's sponsors herald the new provisions as more reflective of today's family circumstances.
While there is language relating to spousal maintenance, the new provisions focus primarily on how child support will be calculated using the parents' combined gross income.
"We cannot continue to use a tool in Minnesota that was developed decades ago, that does not reflect the true family and societal circumstances of today," said Rep. Steve Smith (R-Mound) who sponsored the law with Sen. Thomas M. Neuville (R-Northfield). "Both parents have an equal duty to provide for the needs of the child."
The law goes into effect Jan 1, 2007 for new cases, and January 1, 2008, for modification of existing cases. However, existing cases can use the new law starting in 2007 under a few circumstances, such as the obligor’s gross income changes by 20%, or the number of children changes.
A one-time, six-month review will be held to make sure that compliance of child-support and parenting time is in place.
The law lays out a guide to help courts determine child support based on the parents' combined income. It defines basic support as the dollar amount ordered for a child's housing, food, clothing, transportation and education costs and other expenses relating to the child's care. It does not include monetary contributions for child-care expense and medical and dental expenses. This is a separate calculation.
A significant portion of the new law deals with how health care will be provided for a joint child.
A divorcing couple will need to decide which party must carry health care coverage for the child; the cost of premiums and how it will be allocated between the parties; the circumstances, if any, under which the obligation to provide health care coverage for the joint child shifts from one party to the other; and if appropriate health care coverage is not available for the joint child, whether a contribution for medical support is required.
In determining whether a party has appropriate health care coverage for the joint child, the court must evaluate the health plan using certain factors, including: accessibility to services, comprehensiveness of the policy, affordability and special medical needs of the child.
Unless otherwise agreed to by the parties and approved by the court, work-related or education-related child-care costs of joint children are to be divided between the parents, based on the proportionate share of the parties' combined monthly parental income for determining child support.
To help cover the costs of implementing the new law, $860,000 is appropriated for fiscal year 2006 and $450,000 in fiscal year 2007 from the General Fund to the human services commissioner. The state will be able to recoup some of the money through some new fees, effective July 1, 2005, and modifications to ones already being charged. For example, a $50 fee will be added on to the fee already charged to those filing for divorce. Additionally, the law modifies numerous other fees relating to child support. For example, $20 from each fee collected for modifications to child support agreements will go into the county's general fund to help pay for county child support enforcement efforts and $35 will be credited to the state General Fund.
The bill also calls for an evaluation of the economic impact of the new guidelines to be completed through a private vendor. The human services commissioner is to report back to the Legislature by Jan. 20, 2006
Editor’s note – The new laws will result in lower obligations in some cases and higher obligations in other cases. The statutory language of the formula is somewhat complicated to follow. We hope to have a link to an online calculator once one is available; if anybody is aware of such a calculator please contact us.
Custodial Mom Charged With Felony Deprivation Of Parental Rights - Results Successful
Ms. Tamara Sellers was prosecuted in Washington County earlier in 2005 for Deprivation of Parental Rights, which is a rare occasion, because it is an absolute defense if the custodial parent turns over the child within 48 hours. Since most court-ordered parenting time is 48 hours or less, few opportunites for prosecution ever arise. Ms. Sellers refused to turn over their daughter to the non-custodial father for his court ordered parenting time (he had the court order in hand).
The prosecutor, Maggie Murphy, received complaints for “wasting taxpayer dollars” for prosecuting this crime. Ms. Murphy should be commended for protecting the parent-child relationship and holding the custodial parent equally accountable to follow the law.
At the time Ms Sellers refused to turn over their daughter for the court ordered parenting time, the non-custodial parent called the city police with court order in hand. The police came and the custodial parent still refused to turn over the child. A police complaint was filed, and the city attorney agreed to prosecute. Ms Murphy was very adamant about her duty to ensure that court orders are followed. She has trouble understanding why all city/county attorney’s don’t treat this offense as harshly as they do everything else when a court order isn’t being followed. Hurray for Maggie for enforcing the law consistently and without bias.
A trial was scheduled for Monday January 3, 2005. In the end, there was no trial, but rather a plea bargain. However, this was expected and this is still a HUGE success. The plea bargain was that this custodial mother agreed to have no same/similar violations (i.e. not depriving the other parent of any of his court ordered parenting time); and if she ever deprives the father in the next 12 months, there will be a trial. The judge scolded the mother for violating the court order. Now, at least one mother in the state of Minnesota has a year hanging over her head, and at least one prosecutor is willing to hold her accountable.
Ms. Murphy said that the quantity of responses she got from noncustodial parents was “overwhelming.” She received over 20 phone calls of support, which had quite an impact on her. The outcome was a success. This should be considered a huge WIN for all non custodial parents. YOU MADE A DIFFERENCE. (as reported by Center for Parental Responsbility)
Chief Justice Blatz's Best Decision
(November 11, 2005 Letter to the Pioneer Press editor from Tim Kinley, RKIDS President)
Chief Justice Blatz has finally made a good decision. I applaud her resignation. This will be good for the families and children of Minnesota.
I think Justice Blatz saw that the eventual exposure of the corruption in the judiciary was coming and got out before this was actualized. Unfortunately, it will still be on her watch, both as a legislator and a judge, that a significant amount of damage was done.
If any of you ever see her in public, just remind her politely of a couple of names. Mention Robert Knauff and Eric Heidbreder. Also mention any man that is abused by his wife or girlfriend or has had paternity fraud committed against them. All of these men were and are being tortured to this day due to her fine leadership.
After Hennepin County district court judge James T. Swenson said Mr. Robert Knauff was a fit father but still should not get his child. The child was given to his deceased's ex-wife's sister and husband. Mr. Knauf had to go through three years of hell in order to get his daughter back. Justice Blatz prolonged this ordeal by making Mr. Knauff go back to district court to have the same judge, who took away his daughter for no reason, put a little more weighting on the fact that he was the biological parent. Justice Blatz should have done what Justice Page recommended which was to give Mr. Knauff his daughter right away. (Read C3-01-170, and C6-01-678 Supreme Court Opinions)
Justice Blatz took away Eric Heidbreder's (CO-01-739 Supreme Court Opinions) child even after the mother of his child broke the marriage engagement and placed the child up for adoption. The mother hid the child from the father and moved to Minnesota from another state without telling him. This prevented him from placing himself on Minnesota's fathers' adoption registry before the child was placed for adoption. Chief Blatz supported this fraud, sanctioned the lying, and denied a child its natural parent. This is being done for the shear interest of the social agencies and the money that comes into the state and to the counties by removing a child from a parent. She also told Mr. Heidbreder that he should have registered in every state.
Chief Justice Blatz wants her legacy to be as quoted in the Star Tribune: "looking at the system through the eyes of children" and " . . . making sure the court system did better by kids." Unfortunately, she did not have such a legacy. By failing to face the facts and deal with paternity fraud, false accusations of abuse, domestic violence perpetrated by women, and by denying shelters for abused men and their children, Justice Blatz "looking" has turned out to be intentional blindness.
It was Justice Blatz's responsibility to oversee the judiciary. Our judiciary was left unaccountable to anyone and performed with much corruption. There have been falsified transcripts, evidence removed by judges from case files, cover-ups of denying court ordered parenting time to non custodial parents, as well as case files not even being opened up for children who had lost their parents in order to find relatives to take care of them. Instead, these children are placed away from relatives into county "insider" social case workers' families until it was to late for the relatives to get the children back. When the relatives do try to regain the children once they learned that the children are placed with non family members, the counties bring in all of their money and hired hands to ensure that the relatives don't get the child. This has happened even when the relatives have prior approval to take care of foster children.
None of this should surprise us though, especially in light of the fact that she has made shipwreck of her own family. Her behavior in her personal life clearly shows that it is about the money and not the family.
Hopefully Governor Pawlenty will appoint a new Supreme Court Justice who has a great deal of respect for the family, the constitution, and the law. Such an appointee would leave a legacy far different from that of Justice Blatz. Give us a Justice who will hold justices accountable for the fraud and corruption that is rampant in our family courts.
Tim Kinley is President of R-KIDS of Minnesota, (Remember Kids in Divorce Settlements) a statewide family rights organization. R-KIDS believes that children need and want the emotional, physical and financial support of both parents. R-KIDS works to ensure that Minnesota's family laws allow parents, good parents, to remain in a child's life. R-KIDS can be contacted at www.r-kids.org.
Case law review
Unpublished
In re the Marriage of: Zaghloul v. Elashri, A04-321
Date Filed: 2004-08-24 Court: Minn. App. unpublished Decision: Affirmed in part, reversed in part, and remanded Reviewed by: MSBA Categories: Child Support
On appeal, Appellant-father challenged the district court’s child support order, which was based on income imputed to Appellant. The Court of Appeals affirmed in part, reversed in part and remanded.
The district court awarded Respondent-mother sole physical custody of the parties’ child. With regard to child support, the district court “imputed” to Appellant an annual gross income of $70,000 after concluding that Appellant’s claims regarding his income were not credible. In determining Appellant’s net income, the court deducted only $42 per month (representing the actual taxes paid, rather than the federal and state taxes due, on an income of $70,000).
The evidence on which the district court based its finding included: (a) Appellant’s tax returns, which showed less than $25,000 in income over 5 years; (b) Appellant’s lifestyle -- he owned a four-bedroom house and a late-model luxury car; (c) the lack of documentation for the alleged sale of Appellant’s business to his brother; (d) records showing a co-mingling of Appellant’s personal and business expenses; (e) Appellant’s claim on a 2003 rental application of a $2,500 monthly income; (f) his claim in a 2000 mortgage application of a $10,000 monthly income; and (g) the affidavit of Appellant’s business associate (and distant relative of Respondent-wife), which stated that Appellant claimed he “was making at least $70,000 per year,” Appellant “transferred substantial amounts of money to associates in Egypt,” Appellant’s brother did not work for or own the business Appellant worked for, and Appellant stated he “was running all of his money through [the business] . . . in order to limit child support for his ex-wife.”
The Court of Appeals affirmed the district court’s income determination. Although the term “imputed” may have been used, the district court had not imputed income pursuant to Minn. Stat. § 518.551, subds. 5b(d) and (e), and was not required to apply those subdivisions. Those subdivisions refer to situations where the obligor is voluntarily unemployed or underemployed and where the record provides insufficient information to determine income, so 150 percent of the federal minimum wage should be used.
In this case, the district court did not find that Appellant was voluntarily unemployed or underemployed or that it was impossible to determine his actual income. Rather, the district court found Appellant was making “a significant income,” but maintained “an ongoing fraud” to conceal it. Thus, the court did not need to consider the factors in subdivision 5b(d) (e.g. prior earnings history) when determining Appellant’s income. The evidence supported the district court’s income determination and credibility determination regarding Appellant’s truthfulness.
However, the district court erred in failing to deduct the amount of federal and state taxes owed on a gross income of $70,000 when calculating Appellant’s net income for child support purposes. It was irrelevant that Appellant may not have actually paid the taxes. The amounts were not “available” for child support purposes because Appellant was liable for them, even if he had not yet paid them.
In Re the Custody of the Child of Jason Billy Williams v. Korrin Ann Carlson, A04-2223
August 2, 2005 Minn. App. Court Affirmed
J.J.W. was born to the Appellant in 2000. The Respondent signed a recognition of parentage (ROP) two days after the child’s birth. The recognition of parentage was not 1) revoked within 60 days of its execution or 2) vacated based on fraud, duress, or material mistake of fact within a year of execution of the ROP or within six months of obtaining genetic test results. The Respondent and the Respondent’s family have been very involved in the child’s life since his birth.
In September 2002, the Respondent filed a petition to establish custody and visitation. The Appellant responded that the Respondent was J.J.W.’s father, as she had previously, but she requested “genetic testing to establish paternity.”
In March 2004 a custody trial was held. The parties and the court received genetic testing results in May 2004, and the district court considered the results as part of its decision. The test results excluded the Respondent as the biological father of J.J.W., but the district court awarded the Respondent sole physical custody subject to the Appellant’s liberal visitation. The Appellant’s motion for a new trial was denied.
The Minnesota Court of Appeals affirmed the district court’s decision as follows:
- Existence of Parent and Child Relationship:
When parties sign a ROP and it is not revoked within 60 days of its execution, it has the “…force and effect of a judgment or order determining the existence of the parent and child relationship.” Minn. Stat. §257.75, subd. 3. The court of appeals explained that genetic testing was not permissible in this case because there was not “…an affidavit either alleging or denying paternity…” as required in Minn. Stat. §257.62, subd. 1. This case involved a ROP with no competing presumption of paternity. There had been no action to vacate the ROP based on fraud, duress, or material mistake of fact under Minn. Stat. §257.75, subd. 4(b). The Respondent’s presumption of paternity is conclusive. - Custody:
Paternity has been recognized through a ROP, therefore the Respondent could petition for rights of custody or parenting time under Minn. Stat., §518.156. The district court made specific findings regarding each best interests factor to determine custody. The court of appeals affirmed explaining that the findings were not clearly erroneous, and the court’s decision was not an abuse of discretion. - Motion for New Trial:
Minnesota Rule of Civil Procedure 59.01 provides the situations justifying a new trial. For a district court to grant a motion for a new trial it must find that 1) a cause stated in the rules exists and 2) prejudice has resulted. The Appellant did not specify any grounds for a new trial in her motion, and the court did not find errors during the trial that were unreasonably prejudicial to the Appellant.
In re Marriage of McMahon v. McMahon, A04-1421
Date Filed: 2005-04-19 Court: Minn. App. unpublished Decision: Reversed and remanded
Appellant-husband appealed the district court’s order granting, without an evidentiary hearing, Respondent-wife’s motion to move the residence of the minor children, and a parenting time modification; and denying Husband’s motion to modify physical custody.
The Court of Appeals:
- first held that an abuse of discretion standard applied to its review, rejecting Father’s argument that de novo review was required under Griese v. Kamp, 666 N.W.2d 404 (Minn. App. 2003), rev. denied (Minn. Sept. 24, 2003), because Griese has narrow applicability to situations where the same party submits conflicting affidavits.
The Court reversed, as abuse of discretion, and remanded the district court’s: - grant, without an evidentiary hearing, of permission to change the children’s residence, because the district court did not address relevant issues in Husband’s extensive affidavit; and
- modification of parenting time in a fashion that effectively reduced the time the children had with their father because the distance made impracticable Husband’s use of some of the time awarded.
The parties divorced in North Dakota in 2002. They were awarded joint legal custody of the three children, then ages 9 to 13. Wife was awarded physical custody, and Husband was granted visitation. After the dissolution, Husband moved to Fergus Falls, Minnesota, and in 2003 Wife and the children moved to Brainerd, Minnesota.
In 2004, Wife brought a motion requesting, among other things, permission to move the children’s residence to Oregon and modification of parenting time, based on her intention to marry an Oregonian and on the resulting proximity to her family in Washington. Husband opposed the motion and brought his own motion requesting physical custody.
- The district court granted Wife’s motion concerning the move; modified parenting time; and denied Husband’ motion.
- The Court of Appeals held that the district court failed to address all of the material issues raised by Husband’s affidavit, and that an evidentiary hearing therefore was necessary. About the remand, the Court noted that the hearing should take into account events since the district court entered its order.
The Court also urged the parties to reach agreement concerning the children’s best interests. If that did not succeed, then a complete evidentiary hearing -- including events up to the time of the hearing -- was required by Sefkow v. Sefkow, 427 N.W.2d 203 (Minn. 1988). - The Court held that parenting time must be modified in cases involving long distances, so that the noncustodial parent retains the same amount of contact with the children. In this case, the modified parenting time schedule included visitation that was impracticable because of the geographic distance. On remand, the order must be changed to ensure that the children have the same amount of time with their father as they did before the move.
Maki v. Hansen, A04-1339
Date Filed: 2005-03-31 Court: Minn. App. published Decision: Affirmed in part, reversed in part and remanded Reviewed by: C. Ann Olson Categories: Civil Procedure; Child Support; Jurisdiction
Appellant-father appealed the district court’s order dismissing without prejudice Respondent-mother’s combined motion for review of child-support issues concerning their adult son, who has Down’s Syndrome. He also brought an interlocutory appeal challenging an order setting a hearing on child support and denying his motion for a refund of support paid after the child turned 20.
The court of appeals:
- affirmed, after de novo review, dismissal of Mother’s combined motion for review without prejudice because Father received actual notice and showed no prejudice from the service defect;
- reversed, after de novo review, dismissal of Mother’s late request to continue child support past the age of emancipation and remanded for a determination whether the son’s Down’s Syndrome prevented him from supporting himself; and
- reversed the denial of Father’s motion for a money judgment for amounts paid since their son turned 20, and remanded for reconsideration in light of whether the son could support himself.
The parties’ son, born in 1982, has Down’s Syndrome. Mother raised him; Father was ordered in 1983 to begin paying child support. The son continued in secondary school until just before his 21st birthday in July 2003. Father moved in June 2003 to terminate his child support and for a refund of amounts paid since his son’s 20th birthday.
The CSM (child support magistrate) granted Father’s motion, noting that Mother had neither moved to extend Father’s child support obligations nor provided evidence that their son was capable of supporting himself.
The district court administrator sent the parties copies of the CSM’s order and a document entitled “Notice of Filing of Order and Right to Review or Appeal.” Mother filed a combined motion for review; she personally mailed it to Father but neither served the documents nor mailed copies to Father’s attorney. In March 2004, and after she’d been given two opportunities to effect proper service, the district court dismissed her combined motion without prejudice.
Mother filed another motion, asking for reversal of the CSM’s order and restoration of Father’s child support obligations. The court ruled in June 2004 that it had jurisdiction and set an evidentiary hearing. Father appealed the March and June 2004 orders.
- The court of appeals held that failure strictly to comply with the service requirements of Minn. R. Gen. Prac. 355.01, subd. 2, and 355.02, subd. 2, should not result in dismissal of Mother’s motion. Father received the motion and contacted his attorney; there was no showing that he was prejudiced; and Mother had followed all the instructions on the “Notice of Filing of Order and Right to Review or Appeal” sent by the court administrator.
- The court held that Mother’s motion for continued child support was timely although made after the child turned 20, the presumed age of emancipation. Although support terminates automatically under § 518.64, subd. 4a(a) when, in the case of a child still in secondary school, the child turns 20, a person is still a “child” thereafter for support purposes if mentally or physically incapable of self-support. § 518.54, subds. 2, 1, 64, 4a(a).
The court refused to read McCarthy v. McCarthy, 301 Minn. 270, 222 N.W.2d 331 (1974), as setting out a rule that access to continued support is lost if a motion is not made before the child turns 20. - The court held that because it had reversed and remanded on the issue whether the child was emancipated, it must reverse the denial of Father’s motion for support paid past age 20 and remand for reconsideration in light of how the emancipation issue is decided.
Editor’s note: While the statute does provide that support can continue for a disabled adult child, the statutes, as I understand them, do not necessarily provide which parent receives the support. In murky cases like this, where the child may be in and out of residential care, it seems unfair to allow a windfall to the mother just because she happened to have custody while the child was a minor, in the absence of a guardianship/conservatorship proceeeding, which I do not believe ever took place in this case.
In re Marriage of Wegner v. Wegner, A04-1928
Date Filed: 2005-04-05 Court: Minn. App. unpublished Decision: Affirmed Reviewed by: C. Ann Olson Categories: Custody
Appellant-father appealed the district court’s denial of his custody-modification motion without a hearing, basing most of his arguments on the teenaged child’s expressed preference to live with him.
The court of appeals affirmed, as within the district court’s discretion, denial of the motion without an evidentiary hearing because Father did not make a prima facie case as to three of the four statutory factors.
The parties’ two children were teenagers at the time of the proceedings. After a 1998 dissolution, the parties were awarded joint legal custody and Mother was awarded physical custody.
In March 2002, Father moved for custody of their son; his motion was granted on a temporary basis after an evidentiary hearing, and it was later modified to be permanent after another evidentiary hearing and the parties’ stipulation. Unlike in her relationship with the daughter, Mother’s relationship with the son had become tense.
In 2004, Father moved for custody of their daughter, and she expressed her preference to live with him instead of moving to a nearby town into her new stepfather’s house and commuting to remain enrolled in the same school. The district court denied his motion without an evidentiary hearing.
The court of appeals held that, although a change in circumstances was shown by Mother’s remarriage and plan to move to a neighboring town, a prima facie case for an endangerment-based custody modification was not made as to the other factors.
The daughter had a close relationship with Mother, and she would remain enrolled in her present school; her apparent anxiety about adjusting to a new family relationship is not a reason to change a 6-year custody arrangement absent other allegations. Her stated preference to now live with her father is not a showing of an actual adverse effect on the child that establishes endangerment.
In re Doll v. Barnell, A04-925
In re Strandmark v. Starr, A04-1146 Date Filed: 2005-03-22 Court: Minn. App. published Decision: Affirmed; motion denied Reviewed by: C. Ann Olson Categories: Attorney’s Fees, Civil Procedure; Child Support
Appellants-husbands in this combined appeal argued that Minnesota’s child support guidelines violated the U.S. Constitution. Appellant Barnell also contended that denial of his modification motion was an abuse of discretion.
The court of appeals affirmed because
- the child support guidelines do not violate the U.S. Constitution’s equal protection, due process, or supremacy clauses, and
- the district court was within its discretion to grant Barnell only temporary relief from his support obligations.
The court of appeals also denied Barnell’s motions to strike the county’s brief and appendix, and for attorney’s fees, because it did not find "ignorance of or willful disregard for the rules"; nor did it find that the brief was used for "disrespect, insult, and slanderous accusations."
- The court of appeals held that Minnesota’s child support guidelines, § 518.551, do not violate the U.S. Constitution. There is no federal preemption because Minnesota law does not conflict with federal regulation and, indeed, the guidelines have been federally approved.
There is no equal protection violation because there is a rational basis for the statute and because Appellants, as non-custodians, were not similarly situated with Respondents.
There is no substantive due process violation because Minnesota has a substantial state interest in ensuring child support for its children, and the objective is advanced by guidelines tailored to ensure fair and reasonable child support amounts. - The court held that the district court was within its discretion not to grant a permanent support modification. The temporary relief was appropriate because although a tornado had destroyed appellant Barnell’s home and office, he would again resume earning an income.
Comment from Jack Graham
The most important point about Doll v. Barnell, 693 N. W. 2d 455 (Minn. App. 2005) is not that the guidelines were upheld. The most important point is that they were upheld, even though arguably not reasonable, because the guidelines may not be mechanically applied, i. e., they are freely rebuttable in light of the facts of a particular case which must be considered if evidence is tendered. In practical effect, we are back to the opinion of the court in Moylan v. Moylan, 384 N. W. 2d 859 at 863-864 (Minn. 1986), which says that the court must make findings in every case, that the guidelines are only a starting point, that in-kind contributions may be considered, and that the guidelines are freely rebuttable.
Barnell will hold until January 1, 2007, when Chapter 164 of Minnesota Laws of 2005 goes into effect, establishing new guidelines. And Sections 17, 18, and 26 of Chapter 164 of Minnesota Laws of 2005 make clear that findings are required in every case, and that the new guidelines are freely rebuttable to fit the circumstances of a case, so that, if the guidelines amount is significantly different from the equal duty of father and mother to supply the reasonable needs of their children on an ability-to-pay basis, the guidelines amount should be disregarded, and the amount indicated by the evidence should be ordered.
One of the legal projects of R-KIDS of Minnesota will be to assist family court practitioners adjust their approaches to child support by taking advantage of the rebuttability features of the current guidelines and the guidelines going into effect in 2007.
-- John Remington Graham, General Counsel of R-KIDS of Minnesota
Comment from Tom James
I was the attorney in Barnell vs. Doll. I would add the comment that while it is true that the Court of Appeals technically characterized its decision in the Barnell case as an "affirmance," the practical effect of the Court's decision was to reverse and remand to the district court for further proceedings.
Your case summary is not entirely accurate. It describes the Court of Appeals decision as affirming the district court's grant of a "temporary modification," but what actually happened in that case was that the district court had denied Mr. Barnell's motion for a modification while at the same time granting him a temporary "suspension" of his support obligation. One of our grounds for appeal was that a court cannot simultaneously deny a modification while at the same time granting a suspension of child support, because a suspension IS a modification. The Court of Appeals had previously held, in a published case, that a temporary suspension of support is indeed a kind of modification, so that the standards for modification set out in 518.64 apply to the same extent as they do to other kinds of modifications.
In the Barnell case, the Court of Appeals simply elected to ignore that precedent, holding that in this case the suspension would not be treated as a modification. No viable explanation was given for the different rules applied in the two cases.
Perhaps the most extraordinary thing about all of this is that the Court of Appeals then proceeded to allow Mr. Barnell to return to district court for a retroactive modification of his support obligation! This, notwithstanding the Appeals Court's holding that the "suspension" in this case was not a modification (even though it had previously held, in a case that has never been overruled, that suspensions are, in fact modifications) and even though state law, as mandated by the federal Bradley Amendment, forbids retroactive modifications. We have indeed returned to district court and obtained a retroactive modification of support. This has gone a long way toward easing the financial burden on my client. Consequently, we are not exactly in a position to complain. Yet, the Court's full frontal assault on the principle of stare decisis in this case leaves much to be desired in terms of instilling respect for the rule of law, not to mention predictability and certainty.
I still have not been able to fathom why our Court of Appeals chose such a circuitous route to the right outcome on the facts of the Barnell case, that is, why it couldn't just come right out and call a reversal/remand a reversal/remand. Of course, I have some theories of my own, but for now I suppose it will be best to keep those to myself.
--Tom James
In re LaFond v. LaFond, A04-1176
Date Filed: 2005-03-22 Court: Minn. App. unpublished Decision: Affirmed; motion denied Reviewed by: C. Ann Olson Categories: Attorney’s Fees, Child Support
Appellant-Husband appealed the district court’s denial of his motion to modify support, arguing a substantial change in circumstances.
The court of appeals affirmed because the district court was within its discretion to find that the current support amount was not unreasonable and unfair.
In 1993, the parties dissolved their 19-year marriage with a stipulation in which Father agreed to pay child support for the three children, set at $1,300 per year based on his air traffic controller salary of $74,380. The obligation was adjusted annually. When he retired in 2003, he was making $141,593 annually and paying $1,853 in child support.
His motion sought reduction to $975 (per the guidelines), and was denied.
The court of appeals held that, although Husband had met his burden of proving a substantial change in circumstances, the presumption of unfairness was rebutted by evidence that he voluntarily retired at 49 and failed to prove that he could not obtain another high-paying job.
The decision to deny modification was “especially appropriate” given the parties’ dissolution stipulation, which did not contemplate early voluntary retirement. When he retired, Husband was aware that the youngest of his three children was twelve.
The court also denied Respondent-wife’s motion for attorney’s fees on appeal because Husband did not have extra funds to pay them.
In re Hoppe v. Hoppe, A04-1279
Date Filed: 2005-03-22 Court: Minn. App. unpublished Decision: Affirmed Reviewed by: C. Ann Olson Categories: Child Support, Civil Procedure, Jurisdiction,
Appellant-father appealed the district court’s order denying his motion to modify child support and finding him in civil contempt for willfully failing to comply with previous child-support orders.
The court of appeals affirmed because the district court
- had jurisdiction over the combined civil contempt and IV-D child support proceedings, and
- did not err permitting the public authority to intervene as a real party in interest.
In 2003, several years after the marriage dissolution, the district court found Father in constructive civil contempt for not obeying child support orders. The county later brought a motion for an order to show cause. Father argued that the county was required to intervene.
In May 2004, the court permitted the county to intervene, finding the case was a IV-D case under 42 U.S.C. § 654(4) because Mother had applied for collections services under Minn. Stat. § 518.54. It denied Father’s motion to modify support, found him in civil contempt, and calculated arrearages at over $16,000.
- The court of appeals held that the district court had subject matter jurisdiction over the support and contempt proceedings. While a party generally would use the expedited process in a IV-D case, the contempt proceeding positioned this matter under the exception in Minn. R. Gen. Prac. 353.01, subd. 3(h). Indeed, evidentiary hearings for contempt proceedings in IV-D cases must be heard in district court. Minn. R. Gen. Prac. 353.01, subd.3(h).
- The court held that it was proper for the district court to permit the county to intervene as a real party in interest under Minn. R. Civ. P. 24.01
State Of Minnesota In Court Of Appeals
===In re the Marriage of: Darlene Gerber, vs. John Truman Gerber, and County of Anoka, intervenor,Respondent, A04-1538===
Filed April 12, 2005
Wage withholding to collect child-support arrearages is a judicial remedy subject to the ten-year statute of limitations under Minn. Stat. § 541.04 (2004).
Appellant John Truman Gerber challenges the child-support magistrate’s decision that Anoka County may continue to use wage withholding to collect child-support arrearages under an expired judgment. Because wage withholding is a remedy dependent on a valid judgment of the court, we conclude that it is a judicial remedy, and Minn. Stat. § 541.04 (2004), bars application of wage withholding to an expired judgment.
FACTS
A dissolution judgment entered February 12, 1982, dissolved the marriage of appellant and respondent Darlene Gerber. The judgment required appellant to pay child support in the amount of $900 per month for support of the parties’ five children and further required appellant’s employer to withhold child support from appellant’s wages and forward the amount directly to respondent Anoka County Social Services, which in turn, was required to forward the child support to respondent Darlene Gerber.
The parties’ youngest child was emancipated in 1993. By judgment entered September 13, 1993, Darlene Gerber was awarded $94,850 for unpaid child support. This judgment was never renewed. In May 2004, appellant moved to terminate wage withholding and for reimbursement for amounts collected after September 13, 2003, on the ground that the September 13, 1993 judgment expired and was unenforceable after September 13, 2003. Respondent Anoka County intervened and opposed the motion to terminate wage withholding. A child-support magistrate heard the motion and found that appellant’s ongoing child-support obligation terminated when the youngest child was emancipated on June 20, 1993. The CSM also found that respondent obtained a judgment for child-support arrearages on September 13, 1993, which expired on September 13, 2003, and was not renewed. But the CSM concluded that wage withholding “is an administrative remedy, not a judicial remedy, that remains in place regardless of the date of the entry of the Judgment and Decree.”
In Court Of Appeals, Unpublished
Mignone, vs. Bouta, A05-174
Filed December 13, 2005
Appellant challenges the district court’s affirmance of a child-support magistrate’s order setting appellant’s past and prospective child-support obligations. Because the district court’s findings support its determination of appellant’s prospective obligation for support but do not support its determination of appellant’s obligation for past child support, we affirm in part and remand. FACTS
In 1997, appellant Sean Bouta and respondent Nancy Mignone had a child. Two days after the child’s birth, Bouta and Mignone executed a recognition of parentage, and their relationship ended soon after. There is no order in the record awarding physical or legal custody of the child to either parent or to a third party.
According to Bouta, he and his parents, and Mignone and her parents agreed to raise the child collectively. Bouta claims that after the child’s birth, he and his parents provided the majority of the physical care of and assumed the majority of the financial responsibility for the child until September 2001, when he and Mignone agreed that they would share equally the physical care of and the expenses associated with the child. Bouta claims that since this agreement, he has paid half of the child’s expenses, including health-care costs, four years of pre-school and one year of kindergarten at a private school, and daycare costs.
According to Mignone, the child resides primarily with her and visits Bouta every Friday evening to Sunday evening or Monday morning. Mignone agrees that she and Bouta share the cost of the child’s private-school tuition and that Bouta has paid some medical and other expenses of the child.
At a time when Mignone and Bouta were simultaneously unable to provide health insurance, Mignone requested and received state-assisted health insurance for the child, resulting in an assignment to the state of her rights to medical support. The county subsequently commenced an action to establish child support, medical support, and child-care support.
After an evidentiary hearing, a child-support magistrate (CSM) issued an order that does not specify the custodian of the child but calculates Bouta’s obligations for past and prospective child support at the guidelines amounts, indicating that the CSM assumed that Mignone has had and would continue to have sole physical custody of the child. Bouta sought review of the CSM’s support order by the district court, arguing that the order does not reflect the fact that the parties equally divided time with the child and shared joint physical custody. Bouta did not, however, provide the district court with a transcript of the hearing before the CSM. The district court affirmed the CSM, and Bouta appeals.
When there is a recognition of parentage, an action may be brought to establish a child-support obligation, including an obligation for support for the two years immediately preceding the commencement of the action. Minn. Stat. § 257.75, subd. 3(1) (2004). The child-support guidelines in Minn. Stat. § 518.551 (2004) are rebuttably presumed to be applicable “in all cases when establishing or modifying child support.” Minn. Stat. § 518.551, subd. 5(i) (2004). Whether physical custody is sole or joint determines “whether the presumptively appropriate child support obligation is calculated by a straightforward application of the child support guidelines for sole physical custody, or by applying the [guidelines according to the] Hortis/Valento formula for joint physical custody.” Maschoff v. Leiding, 696 N.W.2d 834, 840 (Minn. App. 2005).
Here, because the parties executed a recognition of parentage and because there is no order awarding custody of the child, Mignone is, and since the child’s birth has been, the child’s sole physical and legal custodian as a matter of law. See Minn. Stat. § 257.75, subd. 3. Therefore, the district court correctly determined that the “presumptively appropriate” obligation for past support is the one arrived at from a straightforward application of the guidelines.
In applying the guidelines, however, the district court failed to make findings that support its determination of Bouta’s obligation for past support. Specifically, the district court states both that the parties agree that Bouta “is providing direct care to the child from Friday evenings to Sunday evenings or Monday morning” and that this degree of care “is not more than ordinary visitation and is not a basis for a downward deviation from the child support guidelines.” (Emphasis added.) The district court then set Bouta’s prospective support obligation and his obligation for past support at the guidelines amount. Bouta argues that in doing so, the district court did not sufficiently consider the amount of time that he cared for and cares for the child and that, therefore, the district court overstated both his past and prospective child-support obligations.
Because the finding regarding the amount of time that Bouta currently is caring for the child does not address the time that he cared for the child in the past, this finding does not support the district court’s determination of Bouta’s past-support obligation. Similarly, the district court’s finding that Bouta’s payment for unspecified “items” and “school activities” did not exceed normal visitation costs does not address the amount of time that Bouta provided direct care to the child during the period that Bouta was found to have an obligation for past support. Therefore, we remand to the district court to make additional findings to substantiate Bouta’s past-support obligation.
On remand, in addition to making findings of fact regarding the amount of time Bouta provided direct care to the child during the period that he was found to have an obligation for past support, the district court shall also determine whether Minn. Stat. § 518.57, subd. 3 (2004), is applicable to the calculation of Bouta’s obligation for past support. When determining a support obligation, a district court may conclude that an obligor has satisfied a child support obligation by providing a home, care, and support for the child while the child is living with the obligor, if the court finds that the child was integrated into the family of the obligor with the consent of the obligee and child support payments were not assigned to the public agency under section 256.741.
Letters to the editor
==Hi, I don't know if== this is the web site to view my thoughts or not but I haven't really been able to find the right one to write to. I was divorced about 5 years ago. I have three kids. My ex-husband got custody because we had guardian ad litems involved and because he was working full time, I was a stay at home mom, and he had a house (his new wife's house), I moved in with my parent's, they felt it best that the kids' live with him.
Well, little do the people who put the best interest of my kids' first with their father, live with a step mother who has very bad anger management problems. She throws things, slams doors, swears at my kids', threatens their dad with divorce all the time, tells ME that she is their mother, tries to dye my daughter's red hair brown because the step mother doesn't want her to have my hair color, she cries and slams her door when my kids' dad gives them money, she is jealous and resentful towards me and she takes it out on the kids' and this is the women that the professional guardian's ad litem in Minnesota thought that my children were better off living with.
I have a 10 year old daughter who has emotional problems, and eats to comfort herself. I love my kids to death and they are my life and I do any thing for them. I don't drink, party, smoke, do drugs, and people who do all this still get custody of their children. I would like to know what is wrong with this picture? I also pay child support faithfully, and I also still but them shoes, clothes, school activity stuff, and other necessities, plus my ex-husband calls all the time with, can you help with this can you help with that. He has custody but I shell out all the money and take all the responsibilities. What is wrong with this MN court systems?
I seriously think that something needs to be done with these child support laws. I pay child support and do not have one problem with supporting my children IF the child support went on them. My ex-husband and his new wife get the child support money, pay their bills and then when the money is gone, they call me for shoe's, clothes, school supplies, kids' school activity needs. I have to pay bills at two households, plus feed my kids' when they are here. The one who has custody of the kids' gets all the time with them, and the ones who don't get to see them as much pay all the money. Every time that I turn around I am getting a phone call to pay for stuff. Where is the custodial parents financial responsibility?? They don't even buy my kids snack foods, they have to buy that stuff them selves. Or I send food home with them. Thanks once again,
Sincerely, Michele Peterson in Minnesota
Dear Mr.. Theisen
I just want to send a simple thank you to you. I just got done reading Anoka County Rally/Deadbolted Dads article. Well I never thought anyone would understand what I am and have gone through for the last two years with my ex-husband who would put me in the category of a dead beat mom, who doesn’t care for her babies, etc etc. My story is a long one and I wish I had the energy to share but I will say that your words stating that loving non-custodial parents find themselves unwillingly relegated to visitor status in their children's lives (Because of a unfounded and unnecessary restraining order a year ago, I haven’t even been able to have the privilege to have Visitor Status) and as well my family has been cut off, too completely. I am in the fight for my babies as I speak I go to court next week and I am so scared that his lies about me abandoning them two years ago (I was diagnosed with cancer and was very ill for many months and he told them even on the days I was receiving chemotherapy that "Your mother has better things to do") along with many more lies and allegations. but again I’m so scared that the judge will believe that I am a dead beat mom and I wont be able to see my babies again. But after searching all night on the internet trying to find some hope, I came across your article and the tears started flowing, just to know that someone out there understands and sees that the unfortunate parents who go through this horrific tragedy do to someone else’s vindictive heart, truly gave me some hope that maybe the judge to will understand and give me an opportunity to be a mom again, and to reclaim who I am not only as a mother but as a person, for I lost my soul when he refused to let me be a part of their lives. I again can only pray that I can undo some of the major damage he has done to our children. Well I could go on and on, but again I just wanted to say thank you for giving me some peace about this nightmare I have been going through, and I would like to be able to help your cause in anyway I possibly can, to let others know and to help others like myself. for I wouldn’t wish this pain from not seeing, touching, laughing with my children has caused on anyone, not even the father that has done it to me.
Sincerly grateful
Susan Shird, Portland Oregon
Message from the Editor
As RKIDs newsletter editor for almost 10 years, I have tried to put together newsletters 3-4 times per year. The past year I got caught up in a computer crash and focus on bankruptcy law changes, so I apologize in that it took me over a year between issues. I thank the RKIDS organization for its periodic updates in the interim.
-Tim Theisen, Esq.
www.theisenlaw.com
ABOUT R-KIDS OF MINNESOTA
- R-KIDS is a non-profit organization dedicated to educating law makers, family law professionals and the public with regard to family law and social services and their effects on children, families, and the consequences to the taxpayer.
- Our main concern is for our community of children of divorced, separated, or unwed families. We believe that children need, want and deserve the love, support and involvement of both parents regardless of marital status.
- Founded in 1985, our membership is comprised of both moms and dads, custodial and non-custodial parents, grandparents, stepparents, and professionals such as social workers, doctors, attorneys, and family law practitioners.
- It is the objective of R-KIDS to develop equitable family law legislation in an effort to improve the lives of all Minnesota children.
"ALL CHILDREN NEED BOTH PARENTS AND ALL GRANDPARENTS IN THEIR LIVES"
- Unless those affected by the current family law system voice an opinion and demand positive change, we and our children will continue to suffer. This change will not occur without your help! Legislators and family law professionals need to hear from; parents, grandparents, and constituents. Until they do, things will not change.
R-KIDS CONCERNS AND ISSUES
- The needs of children to have frequent and meaningful contact with both parents.
- The lack of effective consequences for denied visitation or parental interference.
- Consideration of the financial and emotional responsibility of both parents to provide for their children equally.
- Dissemination of information to the public about current family law issues and the long term consequences for our children, families and the tax payer.
- The harmful impact of out-of-state or long distance relocation on the parent- child relationship.
- Fair and equitable sharing of child support responsibilities which takes into consideration the financial needs of children in second families, as well.
- The negative impact of the adversarial court system and social services upon divorcing families with children.
- Removal of the myth perpetuated in our judicial and family law professional systems that only mothers are nurturing and fathers are financial providers.
- Accountability for the use of child support.
- The impact of the no-fault divorce system on families with children and the need for effective education for parents considering marriage, separation, or divorce.
R-KIDS website is http://www.rkids.org
Do you want to express your viewpoint or share your story in the newsletter? E-mail to ttheisen@bitstream.net, or mail to Tim Theisen, R-KIDS Newsletter Editor, 229 Jackson Street, Suite 105, , Anoka MN 55303. We reserve the right to edit. We will use your name unless asked not to do so. Obviously, viewpoints expressed by readers do not necessarily reflect the position of R-KIDS.
Give to RKIDS Charitable Fund
R-KIDS Charitable fund is a tax exempt, 501(c )(3) foundation. The proceeds WILL NOT BE USED FOR LOBBYING. The fund currently needs money for various charitable activities of benefit to children of divorce. Send your tax deductible donation of $25, $50, or $100 today! Make checks payable to R-KIDS Charitable Fund. Mail to R-KIDS PO Box 24658, Mpls, MN 55424.
This newsletter is distributed via US mail and e-mail. If you are getting it via regular mail, but you have an e-mail address, let us know your e-mail address. Send a note to Editor Tim Theisen, ttheisen@bitstream.net . Not only will you get the newsletter a couple weeks sooner, but you’ll also get certain bulletins between newsletters, and you’ll save us postage costs as well! Also, the e-mail version of the newsletter sometimes has extra articles that didn’t make the editor’s final cut for the print version.
The R-KIDS newsletter does not purport to give legal advice. The information contained herein is general in nature; individual circumstances will always vary.
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