This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







County of Olmsted,





Wanda Jean Bennett, n/k/a

Wanda Jean Radke,





Rich Leown Bennett,




Filed July 18, 2000

Reversed and remanded

Halbrooks, Judge


Olmsted County District Court

File No. F098492



Raymond F. Schmitz, Olmsted County Attorney, Thomas P. Kelly, Assistant County Attorney, 151 SE 4th Street, Rochester, MN 55904 (for appellant)


Rich L. Bennett, RR3, Box 5, Kasson, MN 55944 (respondent pro se)




            Considered and decided by Davies, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant Olmsted County challenges the child-support magistrate’s determination that respondent Rich Bennett is not liable for reimbursement of public assistance under Minn. Stat. § 256.87 (1998).  Because the magistrate erred by concluding that the reservation of child support in Bennett’s dissolution judgment and decree precluded a claim for reimbursement, we reverse and remand.


            Wanda Bennett, n/k/a Wanda Radke (Radke), and respondent Rich Bennett were married on June 11, 1988.  The marriage produced three children.  Radke and Bennett separated in September 1997.  About the same time, Radke began receiving public assistance from appellant Olmsted County.  In February 1998, Radke filed a summons and petition for dissolution.  There is nothing in the record to indicate that notice of the proceedings was sent to the county.

The marriage was dissolved, on a default basis, by a judgment and decree dated March 23, 1998.  Under the decree, the parties were to have joint legal and physical custody of the children.  Although the district court noted that Radke was receiving public assistance, the issue of child support was reserved.  Again, there is nothing in the record to indicate that the county was notified of the decree. 

The county continued to provide Radke with public assistance, and, from September 1997 through May 1999, she received approximately $14,000.  On May 17, 1999, the county served Bennett with notice of an administrative action and a proposed order.  The county sought ongoing child support, past child support, and reimbursement of public assistance.  A hearing was held before a child-support magistrate.  Bennett appeared at the hearing and testified as to his income and the extent of his physical custody of the children.  Radke did not appear at the hearing. 

On August 11, 1999, the magistrate issued an order requiring Bennett to pay ongoing child support.  The magistrate ruled, however, that Bennett was not obligated to reimburse the county for past public assistance or pay Radke past child support because child support had been reserved in the dissolution decree.  The county made a motion for amended findings, arguing that the reservation of support did not preclude its claim for reimbursement, but the motion was denied.


            A government agency may institute an action against a parent for reimbursement of public assistance.  Minn. Stat. § 256.87, subd. 1 (1998).

A parent of a child is liable for the amount of public assistance, as defined by section 256.741, furnished to and for the benefit of the child, including any assistance furnished for the benefit of the caretaker of the child, which the parent has had the ability to pay.  Ability to pay must be determined according to chapter 518.  The parent’s liability is limited to the two years immediately preceding the commencement of the action, except that where child support has been previously ordered, the state or county agency providing the assistance, as assignee of the obligee, shall be entitled to judgments for child support payments accruing within ten years preceding the date of the commencement of the action up to the full amount of assistance furnished.


Id.  The reimbursement statute advances the recognized policy that the primary obligation to support a child falls on the parents, while the government’s contribution should be limited to that which the parents are unable to provide.  County of Anoka v. Richards, 345 N.W.2d 263, 267 (Minn. App. 1984).

The decision of whether and to what extent reimbursement should be ordered rests within the discretion of the magistrate.  County of Hennepin ex rel. Clark v. Hernandez, 554 N.W.2d 618, 620 (Minn. App. 1996).  The magistrate here, however, did not exercise any discretion, ruling that the county was barred by statute from obtaining reimbursement.  Thus, the issue before this court is a question of law, which we review de novo.  Otto v. Otto, 472 N.W.2d 878, 880 (Minn. App. 1991), review denied (Minn. Aug. 29, 1991).

            The issue of whether the reservation of child support prevents an action for reimbursement has already been addressed by this court in Anderson v. Anderson, 470 N.W.2d 719 (Minn. App. 1991).  In Anderson, both parties were receiving public assistance prior to their dissolution.  Id. at 720.  In the dissolution decree, the district court reserved the issue of child support.  Id.  Later, after the father obtained full-time employment, the county commenced an action under section 256.87 for reimbursement of public assistance.  Id.  An administrative law judge awarded reimbursement for assistance paid after the commencement of the action, but refused to award reimbursement for assistance paid before the action.  Id. at 721.  The administrative law judge reasoned that because child support had been reserved, there were no arrearages and no right to reimbursement under the statute.  Id.

            The court of appeals reversed.  Id. at 722.  This court noted that reservation of child support was not an order for support.  Id. at 721  Because there was no previous support order, the county was entitled to reimbursement for assistance paid during the two years prior to the commencement of the action.  Id.; see Minn. Stat. § 256.87, subd. 1 (where there is no prior support order, parent’s liability to reimburse for past public assistance paid is limited to his ability to pay for preceding two years).

            The Anderson decision, simply stated, holds that the reservation of child support does not preclude an action for reimbursement.  Because the magistrate in the present case denied reimbursement on grounds wholly different from those of the judge in Anderson, however, further analysis of the magistrate’s ruling is necessary.  More specifically, the magistrate ruled that the reservation of child support, in connection with the provisions of Minn. Stat. § 518.551 (1998), barred a claim for reimbursement.

            Section 518.551 applies to proceedings involving an order for reimbursement of public assistance.  Minn. Stat. § 518.551, subd. 1(a).  By operation of law, a public authority providing assistance to a parent is assigned the parent’s rights to child support.  Minn. Stat. § 256.741, subd. 2 (1998).  The public agency in charge of enforcing child support is joined as a party in dissolution actions in which the right to child support has been assigned under Minn. Stat. § 256.741 (1998).  Minn. Stat. § 518.551, subd. 9.  A petitioner in a dissolution action must provide notice of the proceedings to the public authority if either party is receiving public assistance.  Id., subd. 5. 

            The magistrate relied on subdivision 6 of Minn. Stat. § 518.551, which provides:

If the court in a dissolution, legal separation or determination of parentage proceeding, finds before issuing the order for judgment and decree, that notification has not been given to the public authority, the court shall set child support according to the guidelines in subdivision 5.  In those proceedings in which no notification has been given pursuant to this section and in which the public authority determines that the judgment is lower than the child support required by the guidelines in subdivision 5, it shall move the court for a redetermination of the support payments ordered so that the support payments comply with the guidelines.


Subdivision 6 clearly applies only to those cases in which an order determining support has been issued.  And as this court has recognized, where there is a prior support order in place, the county may not seek reimbursement for an amount in excess of the obligor’s arrearages under that order.  County of Crow Wing v. Thoe, 451 N.W.2d 357, 360 (Minn. App. 1990), review denied (Minn. Apr. 20, 1990).  A parent is entitled to rely on a prior support award because it was presumably established based on the child-support guidelines.  Id.

            Reservation of the issue of child support, however, is not a determination of child support.  Anderson, 470 N.W.2d at 721.  Minn. Stat. § 518.551, subd. 6, therefore, does not affect the county’s claim for reimbursement of past public assistance.  Thus, Anderson is controlling and the case must be remanded to the magistrate to determine the appropriate amount of reimbursement.

            Reversed and remanded.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.