This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C0-99-1145

Shirley Ann Kowaliw, petitioner,
Respondent,

vs.

Mark Joseph Kowaliw,
Appellant.

Filed February 8, 2000
Affirmed
Peterson, Judge

Hennepin County District Court
File No. DC 141391

Allen H. Gibas, 1422 West Lake Street, Suite 320, Minneapolis, MN 55408 (for respondent)

Cory D. Gilmer, 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

This appeal is from an order denying appellant fatherís motion to modify child support. Father argues that because the child suffers from a mental condition that makes him incapable of self-support, the district court erred by declining to require as a condition of continuing child support that respondent mother obtain appropriate medical treatment for the child and follow the doctorís recommendations. We affirm.

FACTS

When the partiesí marriage was dissolved in 1987, they were awarded joint legal and physical custody of their son, and mother was awarded $150 per month in child support. In November 1994, the district court issued an order increasing fatherís monthly child support obligation to $216. A 1996 cost-of-living adjustment raised fatherís monthly child support obligation to $224.

In April 1997, mother filed a motion seeking an increase in fatherís child support obligation, support arrearages, reimbursement of medical expenses, and attorney fees. She later filed a supplemental motion requesting that child support be continued because the son failed to become emancipated at age 18, due to mental illness. In a November 5, 1998, order the district court continued child support but denied the other relief requested. Mother appealed.

While the appeal was pending, father filed a motion in district court to terminate his child support obligation or, alternatively, condition its continuance on mother obtaining appropriate medical care for the son and making her best efforts to have the son follow treatment recommendations. Fatherís motion was based on allegations that mother physically and verbally abused the son and allowed him to smoke marijuana on a daily basis, that police had been called to motherís residence on at least two occasions, and that mother failed to obtain appropriate medical care for the sonís mental condition. Mother submitted affidavits by the son and herself denying fatherís allegations. She also submitted a medical report by the sonís treating psychiatrist indicating that the son was not following treatment recommendations but not stating that the failure to follow recommendations was motherís fault.

Following a hearing, the district court denied fatherís motion. The court explained:

3. [Father] has brought this motion to terminate all ongoing child support being paid by [father] to [mother]. In the alternative, [father] requests an evidentiary hearing to determine the medical diagnosis and recommendations regarding the mental health of [the son] and his current care in the home of [mother] and whether or not child support should continue based on the current situation.

4. [Father] bases his motion on allegations that [mother] allows [the son] to do whatever he wants, that he continues to smoke marijuana and that [mother] has not done anything to get [the son] help regarding his treatment and care of his mental condition. [Father] claims that he should not have to pay any child support if [mother] is not concerned with [the sonís] well-being. [Father] stated that he would pay his support obligation towards the costs associated with [the son] living in a group home setting, but that he requests termination of his obligation if [the son] continues to reside with [mother]. The Court finds that [father] disputes the continuation of his child support obligation to [mother] based on the care given [the son] by [mother] while he resides in her home.

* * * *

7. The Court finds that [father] makes no claims of a substantial change in circumstances and therefore that [father] has failed to establish a sufficient basis for a modification of his child support obligation under Minn. Stat. ß 518.64. In his affidavit in support of his motion for modification of child support, [father] reemphasizes his objections to paying child support to [mother] on the same grounds that were raised at the prior hearing, specifically, [motherís] care of [the son]. [Father] claims that the Court may impose conditions on the payment of child support, but has failed to support this argument.

This appeal is from the May 7, 1999, order denying fatherís motion.

D E C I S I O N

Whether to modify a child support obligation is within the district courtís discretion and an appellate court will not reverse for an abuse of discretion unless it finds a "clearly erroneous conclusion against logic and the facts on record." Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). The district court, however, must exercise its discretion within the limits set by the legislature. Id.

A child support order

may be modified upon a showing of one or more of the following: (1) substantially increased or decreased earnings of a party; (2) substantially increased or decreased need of a party or the child or children that are the subject of these proceedings; (3) receipt of assistance under sections 256.72 to 256.87 or 256B.01 to 256B.40; (4) a change in the cost of living for either party as measured by the federal bureau of statistics, any of which makes the terms unreasonable and unfair; (5) extraordinary medical expenses of the child not provided for under section 518.171; or (6) the addition of work-related or education-related child care expenses of the obligee or a substantial increase or decrease in existing work-related or education-related child care expenses.

Minn. Stat. ß 518.64, subd. 2(a) (1998).

All of the circumstances under which child support may be modified listed in Minn. Stat. ß 518.64, subd. 2(a), relate to the partiesí and the childís financial needs and the partiesí ability to contribute to child support. Father cites no authority permitting the modification of child support based on a showing that the custodial parent has failed to obtain appropriate medical care for a child.

Father argues that, when child support is continued beyond age 18 because the child, by reason of physical or mental condition, is incapable of self-support, the continuation of child support should be conditioned on the custodial parent obtaining appropriate medical care for the child. See Minn. Stat. ß 518.54, subd. 2 (1998) (defining child as "an individual under 18 years of age, an individual under age 20 who is still attending secondary school, or an individual who, by reason of physical or mental condition, is incapable of self-support"). But father cites no authority that permits such a condition, and the statutes governing child support do not establish different criteria for child support for a child under age 18 and child support for a child who fails to become emancipated due to a physical or mental condition.

Father also argues that the district court erred by denying his motion without allowing him an evidentiary hearing on the sonís continuing inability to be self-supporting. But it was the November 5, 1998, order, not the order currently on appeal, that continued child support due to the sonís inability to become self-supporting by reason of his mental condition. Absent evidence that the sonís inability to become self-supporting has changed since the November 5, 1998, order, the district courtís denial of an evidentiary hearing was not an abuse of discretion. See Hoyland v. Kelly, 379 N.W.2d 150, 151-52 (Minn. App. 1985) (motion for modification of "child support may be determined, in the discretion of the trial court, on the basis of affidavits or following an evidentiary hearing"), review denied (Minn. Feb. 19, 1986). As the district court found, father sought to terminate child support on the same ground (motherís alleged failure to properly care for the son) on which he opposed motherís previous motion to increase and continue child support. Thus, this ground is not a change in circumstances since the previous order. Although the district courtís finding in its November 5, 1998, order that the son was incapable of self-support was based in part on fatherís intent to initiate a conservatorship or guardianship proceeding, the fact that father chose not to initiate either proceeding does not by itself indicate that the sonís inability to become self-supporting has changed.

Affirmed.