This opinion will be unpublished and

may not be cited except as provided by

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






Darel T. Moe,





Suzanne Keiner,



Filed December 26, 2000


Harten, Judge


Washington County District Court

File No. C2-99-5712


Glenn P. Bruder, 4005 West 66th Street, Suite 200, Edina, MN 55435 (for appellant)


Stephen R. Arnott, Arnott Law Firm, P.A., 311 Ramsey Street, St. Paul, MN 55102 (for respondent)


            Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges the district court’s dismissal of his action for breach of contract and civil fraud against respondent, his former spouse.  Because we agree with the district court that a waiver of child support is against public policy and unenforceable, we affirm.


            In 1990, appellant Darel Moe and respondent Suzanne Keiner were married, and in 1995, their only child was born.  In 1996, the parties separated and respondent initiated a marriage dissolution proceeding.  The district court rejected the parties’ first marital termination agreement because it did not contain a provision for child support. 

The parties then prepared and signed an amended marital termination agreement. It provided for joint legal custody of their minor child and established the child’s primary physical residence with respondent, subject to appellant’s right to reasonable and liberal visitation according to a schedule included in the agreement.  The agreement also provided that appellant would pay monthly child support of $265[1] and 50 percent of the child’s school tuition, extra-curricular activity costs, and daycare costs.  In the agreement, appellant specifically waived counsel and acknowledged both that he desired to forgo legal representation and that respondent’s attorney did not represent him.  The agreement further provided that the parties “represent to the Court that the provisions contained in this document constitute the agreement of the parties as to the terms of any Judgment * * *” and that:

[T]he parties have entered into this Agreement intending that it be a full, complete and final settlement and satisfaction of any and all claims of any kind, nature and description to which either party may be entitled or may claim to be entitled, arising from the marital relationship * * *. 


Finally, the agreement contained the following release:

Release – Subject to the foregoing and subject to full compliance therewith, each of the parties is in all respects, manners and things released and fully discharged from any liability, claims, or obligations of any kind or character, whether arising out of the marriage relationship or otherwise, and the foregoing shall be deemed to constitute a full, final and complete property settlement between the parties.


The district court ordered judgment dissolving the parties’ marriage based on this agreement.

Appellant claims that he understood that the parties would share legal and physical custody.  He asserts that respondent explained that the phrase “primary physical residence” was used in their agreement because the law required them to designate one parent’s house as their child’s “primary” residence and respondent’s house was more suitable because appellant’s business required him to travel.  Appellant also claims that he was reluctant to execute any document containing a specific monetary child support amount, but he relied on respondent’s statements that the child support clause was “just to satisfy the judge,” and that she would “never, never, never try to collect child support under any circumstances” provided appellant honored his commitment to pay 50 percent of the school, medical, and daycare expenses as the parties originally agreed.  Respondent denies making any such statements or representations to appellant.

Two years later, respondent applied to Washington County Support and Collections for assistance in collecting child support from appellant.  Appellant then sought reformation of the judgment and commenced a civil action for breach of contract/fraud against respondent.  The district court granted respondent’s motion to dismiss appellant’s complaint pursuant to Minn. R. Civ. P. 12.02(e) for failure to state a claim upon which relief can be granted, noting that the case “must be dismissed because the waiver [of child support] could not be legally binding regardless of the circumstances.”  This appeal followed.


            In reviewing cases involving rule 12 dismissal, the only question before us is whether the complaint sets forth a legally sufficient claim for relief.  Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997) (citations omitted).  Whether or not the plaintiff can prove the facts alleged is immaterial.  Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980) (quotation omitted).

The basic right of minor children to support by the parents may not be affected by any agreement between the parents or third persons.  Courts will not be bound by an agreement between parents affecting the rights of minor children with respect to support, but will be controlled by the welfare of the child as the paramount consideration.


Tammen v. Tammen, 289 Minn. 28, 30, 182 N.W.2d 840, 842 (1970) (citations omitted).

Aumock v. Aumock, 410 N.W.2d 420, 421 (Minn. 1987), concerned a dissolution agreement providing “that child support be waived both now and in the future.”  In Aumock we said:

Although respondent may have been willing to permanently bargain away child support when the stipulation was prepared, the rights of the minor children are not subject to determination through such a bargaining process.  Any agreement between the parents waiving child support cannot be binding on the trial court, which must be guided primarily by a concern for the best interests of the children.


Id.  “[C]hild support relates to non-bargainable interests of children.” Id. (quotation and citation omitted).  Moreover, any agreement purporting to bargain away that right “is contrary to public policy and unenforceable and must be set aside.”  Id. at 422. Appellant seeks to enforce an alleged oral, rather than an actual written, waiver of child support.  This waiver is no more enforceable than the waiver in Aumock.

Appellant relies on McNattin v. McNattin, 450 N.W.2d 169 (Minn. App. 1990), but McNattin is distinguishable.  First, in McNattin the mother agreed in writing to reserve child support in the stipulation if the father would give up his custodial rights.  Id. at 170.  The amended judgment at issue in McNattin changed custody to the mother and reserved child support.  Id.  Here, there was no reservation of child support and appellant contends that he thought he was getting partial physical custody.  Moreover, McNattin noted “that [the] agreement to forego child support is clearly not binding upon the trial court.”  Id. at 171 (citation omitted).  McNattin considered the agreement only because it indisputably represented “the parties’ acquiescence in a settlement.” Id. (citation omitted).  Here, the existence of the waiver is disputed; it does not represent the parties’ acquiescence in a settlement.  Finally, appellant argues that, although the mother in McNattin was herself an attorney, the cases are similar because neither he nor the father in McNattin was represented during the negotiations.  But this similarity is irrelevant; appellant willingly gave up his right to representation, and all the evidence suggests that negotiations regarding the waiver of child support were between appellant and respondent, not between appellant and respondent’s attorney.

Nothing in this opinion prevents the parties from bringing a future motion on child support or custody in district court.[2]  Any agreement between the parties that purports to bargain away their minor child’s right to child support, however, “is contrary to public policy and unenforceable * * *.”  Aumock, 410 N.W.2d at 422.


[1] While the amended marital termination agreement provided that appellant would pay $265 in monthly child support, the judgment entered by the district court provided that appellant would pay $375 in monthly child support.

[2] Because of our decision on the first issue, it is not necessary for us to address equitable remedies or fraud on the court.