This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-354

C9-00-356

 

Patricia Gay Buhl,

Respondent (C5-00-354),

 

Donna Marie Gordon,

Respondent (C9-00-356),

 

Ramsey County,

Respondent,

 

vs.

 

Delmar Gene Stark,

Appellant.

 

Filed October 10, 2000

Reversed

Randall, Judge

 

Ramsey County District Court

File No. F6-87-516589

 

Patricia Gay Buhl, 863 Twenty-First Avenue Southeast, Rochester, MN  55904 (respondent pro se)

 

Donna Marie Gordon, 285 Goodhue Street, Apartment 1, St. Paul, MN 55102-3041 (respondent pro se)

 

Susan Gaertner, Ramsey County Attorney, Steven R. Pfaffe, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 415, St. Paul, MN  55102 (for respondent Ramsey County)

 

Betty A. Berger, Southern Minnesota Regional Legal Services, 300 Minnesota Building, 46 East Fourth Street, St. Paul, MN  55101 (for appellant)

            Considered and decided by Randall, Presiding Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

In this consolidated appeal from a child-support magistrate's decisions, appellant alleges the magistrate erred by ordering a modified child-support obligation of $25 a month for each of two children.  Appellant claims (a) his reasonable monthly expenses exceed his income; (b) the net monthly income of one obligee exceeds her expenses; and (c) the magistrate refused to consider appellant's reasonable vehicle expenses.  Appellant also asserts that the magistrate erred by ordering retroactive, monthly child-support obligations of $25 and erred, in one case, by amending the retroactive date of appellant's modified support obligation.  We reverse.

FACTS

                Appellant Delmar Gene Stark and respondent Donna Marie Gordon are the parents of a child born in 1982.  Stark and respondent Patricia Gay Buhl are the parents of a child born in 1986.  In 1999, Stark moved to modify his ordered child-support obligation for each child, asserting he was unable to contribute any child support. 

            After separate hearings, the magistrate determined that Stark has been receiving Old Age Survivor's Disability Income (OASDI) as well as Supplemental Security Income (SSI), Minnesota Supplemental Income, and/or General Assistance since June 1, 1988.  The magistrate found that Stark receives $332.50 in OASDI and $188.50 in SSI.  After excluding $45.50 in Medicare payments, the magistrate still found that Stark has $287 in income "for the purposes of child support."  The magistrate determined that Stark has reasonable monthly living expenses of $494, but then went on to find that Stark

has access to, and may own, a Harley-Davidson motorcycle and a vintage Camaro Z28.  The operation of these vehicles, and the travel of the Obligor to Wisconsin on a regular basis, evinces an ability to meet expenses over and above the Obligor's very basic living expenses.  The needs of the Obligor's child are a higher priority than vehicle ownership, operation, or travel.  Based upon the Obligors' ability to afford to operate vehicles, and to travel, it is determined that the Obligor has the ability to pay [$25] per month in child support.

 

The magistrate modified support to $25 a month for each child, retroactive to June 1, 1988.

            Stark filed a motion for review in both cases, asserting that he does not own the aforementioned vehicles and that when SSI is not considered, his needs exceed his income.  Buhl also moved for review, asserting, in part, that the reduction in child support should be made retroactive only to February 1997 because she received child support through the county from October 1993 to January 1997 and should not have to repay the difference between the amount she received and the retroactive child-support obligation of $25 a month. 

            The magistrate denied Stark's motion in both cases but partially granted Buhl's motion to amend the decision.  The magistrate amended its original modification order to make the $25 child-support obligation retroactive to February 1, 1997, instead of June 1, 1988, and reserved the issue of the amount of child support due between October 1, 1993, and January 31, 1997.

            In the Gordon case, Stark appealed from the magistrate's order modifying child support and the magistrate's denial of Stark's request for review.  In the Buhl case, Stark appealed from the order modifying child support and the amended order.  We consolidate these appeals.  

D E C I S I O N

The district court has broad discretion in modifying child-support orders and will be reversed only if it abused its discretion by making a clearly erroneous conclusion that is contrary to logic and the record facts.  Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999).  We apply the same standard of review to orders issued by child-support magistrates.  Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000).

I.

                Stark asserts that because his reasonable monthly expenses exceed his net monthly income, the magistrate erred by ordering him to pay $25 a month in child support for each child on the basis that he has "access to or possible ownership" in two used vehicles.  We agree.

                 SSI benefits are only available to the elderly, blind, or disabled, whose incomes fall below a certain level set by the federal government.  Becker County Human Servs. v. Peppel, 493 N.W.2d 573, 574 (Minn. App. 1992); see also 42 U.S.C. § 1381a (1994) (stating "aged, blind, or disabled individual[s]" determined to be eligible on basis of income and resources shall be paid SSI benefits).  Further, "SSI benefits are awarded solely on the basis of need, and are designed to protect the recipient from poverty."  Peppel, 493 N.W.2d at 575 (citation omitted). 

            The magistrate specifically noted that he would not consider Stark's SSI benefits for the purposes of child support, pursuant to Peppel, which held that SSI benefits may not be considered in making child-support awards.  Id. at 576.  OASDI presents the same unfair problem to an obligor.  Utilizing Stark's OASDI benefits in calculating child support has the same effect as using Stark's SSI benefits.  Stark receives SSI benefits only because his income without SSI is below the poverty level.

            Even including Stark's SSI benefit of $188.50 each month, his income totals $475.50.  Thus, Stark's conceded reasonable expenses of $494 exceed his income.  Further, even including both SSI and OASDI, Stark's income is still below the minimum guidelines amount for establishing a percentage-based child-support obligation under Minn. Stat. § 518.551, subd. 5(b) (Supp. 1999) (directing court to base child support on percentage of net monthly income starting with $551).

            We agree with the general principle that both parents should contribute to the support and upbringing of children.  But due process requires that support obligors have some means to do that before amounts enforceable by law can be laid on them.

            The magistrate recognized that Stark could not afford to pay child support from his OASDI when the magistrate found that Stark's expenses are $494 a month.  None of Stark's listed expenses were found to be unreasonable.  But the magistrate based his decision to award support on his finding that Stark "has access to, and may own," a Harley-Davidson motorcycle and a Camaro and that "Stark makes frequent trips to Wisconsin."  We have no direction in the record as to what that statement means.  The magistrate made no findings on where in Wisconsin Stark traveled, or why, or if they are frivolous or needed trips, or who paid for such trips.  Stark's listed expenses did not include maintenance expenses for vehicles or travel expense for trips to Wisconsin.  There is no indicia of ownership of either vehicle in the record.  We can only note that if a friend or a relative borrows a car to a poor person for occasional use, that does not change a poor person's life or monthly income.  To the extent the magistrate's conclusion that Stark has the ability to pay child support is based on Stark's "access to and possible ownership" of a Harley or Camaro, that conclusion is unsupported in the record and unsupported in the findings.  The magistrate did not find that Stark owns either vehicle.  Cf.Minn. Stat. § 518.551, subd. 5(c)(1) (Supp. 1999) (stating "all earnings, income, and resources of the parents, including real and personal property" shall be taken into account when setting or modifying child support). 

            The magistrate erred by setting Stark's child-support obligation at $25 a month for each child.  Based on this record, Stark does not have the ability to pay $50 a month child support.  On this record, we eliminate Stark's child-support obligations.

II.

            Stark also asserts that he does not have the ability to pay $25 a month retroactively to 1988.

The magistrate found that Stark has been receiving OASDI benefits since June 1, 1988, and has received SSI, Minnesota Supplemental Income, and/or General Assistance for the "vast majority of the months since June of 1988."  The magistrate made no findings indicating Stark's benefits or other resources have changed since June 1988.  Thus, for the same reasons that we conclude that the magistrate erred by ordering Stark to pay current, monthly support of $25 to each child, we conclude that the magistrate abused his discretion by ordering Stark to pay retroactive support in this amount.  We reduce Stark's retroactive child-support obligations to $0.


III.

            Finally, Stark argues that the magistrate erred by changing the retroactive date of the modified award from June 1, 1988, to February 1, 1997, in the Buhl case.  We agree.

Because Stark received SSI and OASDI between June 1988 and the date of the modification in 1999, he met the statutory requirements for retroactive modification.  See Minn. Stat. § 518.64, subd. 2(d)(2) (Supp. 1999) (stating modification may be applied retroactively if party seeking modification received certain federal benefits, including SSI and OASDI, during period for which retroactive modification is sought).  In amending its order in the Buhl case and changing the retroactive date of the modification from June 1, 1988, to February 1, 1997, the magistrate made no findings explaining its reasoning for this change other than the following:

The retroactive amendment of the Obligor's child support back to June 1, 1988 resulted in a request from the County that the Obligee repay the County for funds that were forwarded to her, and are apparently not now due to her.  The period of repayment is October 1, 1993 through January 31, 1997. 

 

Retroactive modification of a child-support order is generally within the district court's discretion.  Guyer v. Guyer, 587 N.W.2d 856, 859 (Minn. App. 1999), review denied (Minn. Mar. 30, 1999); see alsoMinn. Stat. § 518.64, subd. 2(d) (stating modification "may" be applied retroactively).  However, we find no authority that supports amending a retroactive child-support modification order solely because an obligee states that the retroactive award may result in an obligee having to repay child support she received in excess of the retroactive award.  Modifying Stark's obligation retroactively to February 1, 1997, rather than June 1, 1988, is contrary to Peppel's holding that SSI benefits may not be used to pay child support and would defeat the magistrate's own purpose in initially making Stark's child-support obligation retroactive to June 1, 1988, the date he began receiving public assistance.  The district court erred by altering the retroactive date in the Buhl case.  The modified child-support obligation (of "$0") is retroactive to June 1, 1988, in the Buhl case and in the Stark case.     

            Reversed.