This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-01-10

 

Rhonda Ann Loch, n/k/a Rhonda Ann Jost, petitioner,

Respondent,

 

vs.

 

Larry Anthony Fuchs,

Appellant.

 

Filed June 26, 2001

Affirmed in part, reversed in part, and remanded

Randall, Judge

 

Stearns County District Court

File No. F59150716

 

 

Rhonda Loch, P.O. Box 169, St. Martin, MN 56376 (pro se respondent)

 

Roger S. Van Heel, Stearns County Attorney, Richard J. May, Assistant Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN  56303-4773 (for respondent)

 

Gregory S. Walz, 26 North Seventh Avenue, P.O. Box 1794, St. Cloud, MN 56302 (for appellant)

 

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

 

U N P U B L I S H E D   O P I N I O N

R. A. RANDALL, Judge

            Appellant challenges the child-support magistrate's modification of child support arguing the magistrate (a) abused her discretion by setting support without making findings on the parties' needs, the child's needs, or the income of respondent's spouse; (b) lacked the ability to set medical support without making findings regarding the cost and availability of insurance for the child; and (c) erroneously precluded review of her order by the district court.  Appellant further argues that public attorneys improperly represented respondent, and he was denied his right to equal protection under the United States and Minnesota Constitutions.  We affirm in part, reverse in part, and remand. 

FACTS

            On March, 24, 1992, a judgment for child support was entered that required appellant Larry Anthony Fuchs to pay $125 per month in child support, "obtain and maintain" medical and dental insurance for the child, pay $50 per month to respondent Rhonda Ann Loch for medical support, and update respondent regarding his income as it increased.  When his income did later increase, appellant did not report it.  Consequently, the Assistant Stearns County Attorney filed a notice of intervention and made a motion for modification of child support on April 19, 2000. 

            Appellant requested a hearing.  After the hearing, the child-support magistrate issued an order modifying appellant's child-support obligations based on his increased income.  The magistrate found that appellant was not maintaining medical insurance and that respondent was paying $261 per month for insurance.  The record evidence indicates the insurance covers respondent and her two children, only one of whom is appellant's child.  The magistrate chose the figure of $150 per month for appellant to pay for medical support.  For child support, the magistrate deviated downward from the guidelines and ordered appellant to pay $400 per month rather than $436.64 citing "the fact the Obligor has three subsequent children."

            Appellant filed a motion for review by the district court.  He challenged the magistrate's modification and argued that the child-support statutes as applied to him were unconstitutional because they deny him equal protection.  The district court issued an order remanding the matter to the child-support magistrate with instructions to make additional findings consistent with the law to clarify how she arrived at the $400 per month support obligation.  The district court refused to decide appellant's constitutional challenge on its merits because the attorney general had not yet responded at that time, and respondent had not put forth any substantive arguments of substance. 

            The attorney general's office responded after the district court issued its opinion, and stated that it would not intervene, but reserved the right to intervene if the issue were appealed.  The attorney general's office was notified of the current appeal and again declined to intervene. 

            The magistrate clarified her previous order by adding three findings on appellant's income and his spouse's income.  A memorandum attached to the magistrate's order sent to appellant stated:

            You have a right to appeal the attached order to the Court of Appeals – you do not have a right to bring a Motion for Review or a Motion to Correct Clerical Mistakes before the magistrate or a district court judge.

 

This appeal followed.

D E C I S I O N

I.                   Child-Support Magistrate's Order

            When reviewing a child-support magistrate's order in an expedited child-support proceeding, this court applies the same standard of review as applied to a district court order "in a proceeding conducted outside the expedited child support process."  Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000).  An appellate court will reverse the magistrate's child-support order only if the court is convinced there was an abuse of discretion.  Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999).  Our review of the magistrate's findings is limited because appellant did not order a transcript of the proceedings for review.  Where an appellant fails to provide a transcript, this court's review is limited to whether the legal conclusions are supported by the findings.  Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995).

            A.  Income and Child's Needs Findings

              First, appellant erroneously relies on Bredeson v. Bredeson, 380 N.W.2d 575 (Minn. App. 1986) to argue that the child-support magistrate erred in not considering the income of respondent's spouse to determine support obligations.  After Bredeson was issued, the legislature passed the statute now codified at Minn. Stat. § 518.551, subd. 5(i) (2000), which does not require a finding about the income of the custodial parent's spouse.

              Appellant next argues that the magistrate abused her discretion because she failed to account for respondent's needs, the child's needs, and the needs of appellant's subsequent children as the district court directed when it remanded the case for more findings.  We disagree.  Appellant relies on Bock v. Bock, 506 N.W.2d 321 (Minn. App. 1993).  After Bock was issued, the legislature passed the statute now codified at Minn. Stat. § 518.551, subd. 5f (2000), which states:

[T]he fact that an obligor has subsequent children shall be considered in response to a request by an obligee for a modification to increase child support.  In order to deviate from the support guidelines in subdivision 5 to consider the needs of subsequent children, the [district] court must:

            (1)  find the obligor's total ability to contribute to dependent children, taking into account the obligor's income and reasonable expenses exclusive of child care.  The obligor's expenses must be:

(i)  reduced as appropriate to take into account contributions to those costs by other adults who share the obligor's current household; and

(ii)  apportioned between the parent and any subsequent child with regard to shared benefits, including but not limited to, housing and transportation;

(2)  find the total needs of all the obligor's children, and if these needs are less than the obligor's ability to pay, the needs may become the obligor's child support obligation.  When considering the needs of subsequent children, the [district] court must reduce those amounts as appropriate to take into account the ability to contribute to those needs by another parent of the children;

(3)  make specific findings on the needs of the child or children who are the subject of the support order under consideration; and

(4)  exercise discretion to fairly determine the current support obligation and the contribution left available for other children, considering that the support obligation being determined should be in an amount at least equal to the contribution for a subsequent child.

 

              The magistrate made findings regarding appellant's current minimum net-monthly income after deductions; monthly living expenses that cover himself, his wife, and three subsequent children; and his spouse's net monthly income that helps "pay for the monthly household expenses."  Additionally, the magistrate deviated downward (although slightly) from the support guidelines, and acknowledged appellant's argument that he had three subsequent children to support.  The magistrate, in essence, found that the deviation downward was also in the best interests of respondent's one minor child in that the present figure is still more than the previous obligation. 

              The magistrate did consider appellant's needs, the child's needs, and appellant's subsequent children.  The magistrate did deviate downward for appellant from the presumptive guidelines amount.  Appellant argues that his subsequent children were not considered because his income was not divided equally between his child with respondent and his three subsequent children.  Appellant failed to account for the shared household as required by the statute.   Respondent, in turn, requests this court to change appellant's support obligation so that it reflects the guidelines amount of $436.64 rather than $400.  We decline to do so.  First, respondent did not file a notice of review.  See Northern State Bank v. Efteland, 409 N.W.2d 541, 544 (Minn. App. 1987) (indicating failure to file notice of review limits issues on appeal to those in notice of appeal).  Second, the record easily supports the magistrate's legal conclusion to deviate slightly downward from the child-support guidelines.

            B.  Medical Support Findings

            Appellant argues that the magistrate abused her discretion when she ordered appellant to pay $150 per month in medical support because she "made no findings as to whether appellant had insurance coverage" or what amount of respondent's insurance cost was attributed to the child.  We agree.  The magistrate found that appellant has medical insurance covering only himself, and that respondent pays $261 per month for medical and dental insurance.  The record indicates that respondent's insurance covers herself and her two children, only one of whom is appellant's child. 

            In the initial judgment for child support, appellant was required to obtain insurance for the child and contribute $50 per month.  He did not maintain any medical insurance.  The current order increased his obligation to $150 per month in accordance with his increased salary and in recognition that respondent provides the insurance.  As discussed above, the magistrate did consider appellant's ability to pay expenses by detailing his available income after deductions and retirement contributions.  The magistrate found that appellant has the "ability to contribute to the payment of unreimbursed medical and dental expenses of the minor child."  But there is neither a finding that explains what portion of the $261 per month cost of insurance for appellant and her two children is attributed to appellant's child nor a finding on what amount is attributed to "unreimbursed medical and dental expenses."  Thus, we cannot say that the findings support the legal conclusions on the narrow issue of apportionment of medical bills and medical insurance.  We remand this issue back to the magistrate to make findings on what portion of the insurance cost is attributable to appellant's child, and what amount appellant should be required to pay toward unreimbursed expenses.

            C.  District Court Review

            Next, appellant contends that the magistrate had no authority to deny appellant his right to seek a second review before the district court because the district court reviews a magistrate’s order de novo.  We disagree.  Appellant's reliance on Blonigen v. Blonigen, 621 N.W.2d 276 (Minn. App. 2001), review denied (Minn. Mar. 13, 2001) is misplaced.  In Blonigen, there was an initial order, a motion for review, and then an appeal to this courtId. at 278-79.  This court concluded that when the district court reviews the magistrate's order, it conducts a de novo review.  Id. at 280.

            In the present case, after the magistrate issued her order, appellant requested a motion for review by the district court.  The district court did review the order de novo and remanded it back to the magistrate with instructions.  The magistrate issued an amended order with a notice stating that appeal to this court was the only appeal available.  Appellant argues that because Blonigen held that the review by a district court after a motion for review is de novo, he must be allowed a second motion for review.  Blonigen does not support that proposition.  We find no statute or caselaw to support that proposition either.

            Rather, the rules for this expedited process prescribe a specific review procedure.  First, a party is entitled to bring a motion for review and on review,

            [t]he child support magistrate or district court judge must make an independent review of any findings [and the] district court judge may approve or modify the decision * * * or may remand the matter to the child support magistrate with instructions

 

  Minn. R. Gen. Pract. 372.05, subd. 2 (emphasis added).  And then,

            [u]pon receipt of an order issued as a result of a motion for review, the court administrator must promptly serve a notice of filing of order or notice of entry of judgment upon each party by U.S. mail, along with a copy of the order or judgment.  The notice must state that the parties have a right to appeal to the court of appeals under Rule 374.

 

Minn. R. Gen. Pract. 372.06.

            Here, the order became final after the magistrate incorporated the changes as instructed by the district court.  The next step for review, as prescribed by the rules, is the court of appeals.  The supreme court designed this expedited system.  The Conference of Chief Judges approved the form that notified appellant of his right of appeal to only this court.  Appellant does not cite any authority, and we could not find any to support his argument that he has a right to a second motion for review.  Accordingly, we conclude that appellant was not denied his right to seek review of the magistrate's decision.

II.  Public Attorney Representation

            Appellant argues that the Assistant Stearns County Attorney and the attorney general, by their participation in this case, are improperly "advocating against equal treatment for all the citizens."   We are not persuaded.  First, the county attorney properly filed a notice of intervention pursuant to Minn. Stat. § 518.551, subd. 9(b) (2000) and Minnesota Rules of Expedited Child Support Process 357.01 in order to make a motion for child-support modification based on respondent's increased income.  We understand appellant's argument that the county attorney is representing respondent.  It certainly would look like that to a layman.  But that argument is technically incorrect.  The office simply represents its own public interest pursuant to Minn. Stat. § 518.551, subd. 9(b).  Its motion and representation are proper. 

            Next, appellant does not explain the "improper" nature of attorney general's office involvement.  The attorney general's office was properly notified of appellant's claim that the child-support statutes as applied to him were unconstitutional.  The office decided not to intervene and that has been the extent of its involvement in this case.  We conclude that the representations performed by public attorneys involved in this case have not been improper.

III.  Equal Protection

            Finally, appellant argues he was denied his right to equal protection.  Because appellant could not have challenged the constitutionality of the child-support statutes' application to him in the magistrate's final order until after the order was issued, we review his claim on the merits.  "Equal protection is an inherent but unenumerated right found and confirmed in Minnesota's state constitution."  Lundberg by Lundberg v. Jeep Corp., 582 N.W.2d 268, 271 (Minn. App. 1998) (citations omitted).  The right to equal protection means that people in similar circumstances be similarly treated under the law.   Rocco Altobelli, Inc. v. State, Dep’tofCommerce, 524 N.W.2d 30, 37 (Minn. App. 1994).  Thus, the threshold issue is whether appellant, a person who has one child with one spouse and three children with a second spouse, is similarly situated to (1) a person who is unmarried and has one child with one person and three children with a second person and (2) a person who has four children from one relationship. 

            Appellant argues that he is similarly situated to those two groups of persons because all are parents of four children.  First, we conclude appellant is not treated differently from a person who is unmarried and has children from a second relationship.  The child-support statute does not refer to married and unmarried persons, rather it refers simply to "adults."  See Minn. Stat. § 518.551, subd. 5f ("obligor's expenses must be * * * reduced as appropriate to take into account contributions to those costs by other adults who share the obligor's current household").  Thus, unmarried persons are subject to the same statutory scheme appellant challenges. 

            Second, appellant is not similarly situated to a person who has four children with one spouse.  With one spouse you have no second mate, no second household in need of support, and the four children have the same mother and father.  That does not fit the definition of "similar."  See Black's Law Dictionary, 963 (6th ed. 1991) (defining similar as "resembling in many respects; somewhat like; having a general likeness, although allowing for some degree of difference").  Minor children of different families who have one common parent have more than some degree of difference.  Appellant has failed to demonstrate that similarly situated persons are treated differently (unconstitutionally) under the child-support statutes.   We conclude that appellant has not been denied his right to equal protection under Minnesota's child support statutes.

            Affirmed in part, reversed in part, and remanded.