This opinion will be unpublished and

may not be cited except as provided by

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






County of Swift,





Tony B. Olson,



Filed July 17, 2001


Gordon W. Shumaker, Judge


Swift County District Court

File No. F499500007


Robin W. Finke, Swift County Attorney, 114 14th Street North, Benson, MN 56215 (for respondent)


Robert V. Dalager, Fluegel, Helseth, McLaughlin, Anderson & Brutlag, Chartered, 215 Atlantic Avenue, P.O. Box 527, Morris, MN 56267 (for appellant)


            Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Tony B. Olson appeals from a judgment for past-due child support, arguing that the district court made insufficient findings to support its conclusion that Olson owes Swift County $7,274.63 in child support.  We affirm.



            In January 1999, Swift County district court adjudged appellant Tony B. Olson the father of a child, born May 19, 1998, to Carrie Holzheimer.  Because Holzheimer was receiving public assistance, the court ordered Olson to pay to Swift County $409 in monthly child support beginning December 1, 1998, and an additional $50 each month for medical support.

The record reflects that in 1999 Olson made only a single $275.40 child-support payment.  To enforce Olson’s support obligation, Swift County moved to reduce past-due obligations to judgment.  The county also moved for a finding of civil contempt for Olson’s failure to make timely child-support payments. 

            At a November 22, 2000, hearing on the motions, the Swift County Attorney, after conferring with the child-support worker assigned to Olson’s case, stated that Olson was $8,318.54 in arrears on his child-support obligation.  Of this figure, $3,111.91 was owed to the county and $5,206.63 was owed to Holzheimer.  Olson did not dispute either the total arrearage or the division of the indebtedness.  The district court found, from the bench, that

the current amount of arrears due to Swift County or the State of Minnesota for child support and not set to judgment is $3,111.91; that the current arrears that are due to [the child’s mother] are $5,206.63.


* * * *


I will also set judgment in favor of [Swift County] in the amount of $3,111.91, and against [Olson] in that amount.


* * * *

I’m not going to enter any judgment with regard to [the child’s mother], because * * * there appears to be some potential issues involving * * * whether or not those dollars are actually owed to her; ah, my finding * * * that the arrears are $5,206.63 is just that, it’s only a finding that is subject to change * * * .


The court directed the Swift County Attorney to draft an order memorializing the stated findings.

With an ex parte letter to the court following the hearing, the county attorney submitted a proposed order that increased the arrearages owed to Swift County and decreased the arrearages owed to Holzheimer.  However, the total amount of arrearages  remained the same.  In the letter, the county attorney noted that the child-support officer assigned to handle Olson’s case

now tells me, upon further investigation, that the arrearages owed are actually as follows: to Swift County $7,274.63; to [child’s mother] $1,043.91.  I have included those numbers in the enclosed Order.


On December 4, 2000, the district court signed the proposed order and entered judgment against Olson in favor of Swift County in the amount of $7,274.63.

Olson appeals, arguing that the district court’s findings do not support its conclusion that Olson owes Swift County $7,274.63 for past-due support obligations.  Olson also requests an award of attorney fees for this appeal.



At the November 22, 2000 motion hearing, Olson stated that from November 1998 through approximately March of 2000 he resided with his child and Holzheimer. While living together, he claimed that he paid the household expenses.  During this period, Holzheimer was receiving public assistance from Swift County.  Olson argued that he should not be responsible for paying child support during this reunification period and that any arrearages should be offset by his payment of expenses for the support of his child.

On appeal, Olson argues that the $7,274.63 judgment in favor of the county “substantially reduces the amount of offset or reduction [Olson] may assert or claim against [the child’s mother].”  Therefore, he argues that his rights were substantially affected by the court’s post-hearing amendment of its oral findings.

            Olson’s obligation to pay $459 per month in child support and medical support was clearly defined in the court’s January 1999 order.  He had notice of this obligation and a reasonable time within which to comply.  Child-support payments must be made by any person having such obligation until they are modified.  See Minn. Stat. § 518.64, subds. 1, 2 (2000) (noting that party may move for modification of support obligation upon a showing of changed circumstances rendering the existing order unreasonable and unfair); cf. Dent v. Casaga, 296 Minn. 292, 296, 208 N.W.2d 734, 737 (1973) (noting court recognizes the right of a party to seek modification of child support in dissolution decree, but stated that “until such modification has been ordered, the decree is entitled to enforcement as originally entered.”).

Olson never sought a modification of his child-support obligation to reflect support expenses he allegedly paid while living with his child and Holzheimer.  In effect, he now argues that his “private modification” of his support obligation entitles him to a credit against the arrearages owing Holzheimer.  Because no court order ever modified Olson’s support obligation, the original judgment as entered remains enforceable.

We do agree with Olson that it was improper for the county attorney to change the division of arrearages through an ex parte letter to the court.  Potentially, this is more than a clerical issue because, had Olson obtained judicial approval of a reduction of his support obligation while he lived with the child and Holzheimer, it would be legally significant to know how much of the total obligation would be owing to each.  But the county’s ex parte proceeding did not cause any prejudice to Olson.

Because of the prohibition against a private modification of support, Olson remains liable for all support due under the original judgment, no matter how that support is divided between the county and the child’s mother.  The computation of the total amount due is merely a matter of arithmetic and, according to the record before us, the total arrearage appears to have been calculated correctly.  Olson does not dispute that calculation; his disagreement is as to the division of the total amount.

Any dispute as to how child support is to be divided between the county and Holzheimer is properly between only those parties because an individual who receives public assistance for the support of a child is deemed to have assigned the right to current and accrued child support to the county providing assistance.  Minn. Stat. § 256.741, subd. 2 (2000).  Thus, on this record, the only issue properly before us is whether the district court’s findings as to the fact and the amount of arrearages support the court’s conclusions of law.  On appeal from a judgment, the only questions for review are whether the evidence sustains the findings of fact and whether the findings of fact sustain the conclusions of law and judgment.  Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976). 

The undisputed evidence showed that under the original child-support judgment Olson was $8,318.54 in arrears.  Neither the evidence nor the law entitles Olson to any reduction of that obligation.  The county’s request for judgment for only part of the arrearage does not alter Olson’s liability for the entire amount.  The district court did not err in determining the amount of child support due and owing.

Finally, Olson argues that he is entitled to attorney fees and expenses incurred in connection with this appeal.  “An award of attorney fees on appeal rests within the discretion of this court.”  Case v. Case, 516 N.W.2d 570, 574 (Minn. App. 1994).  Minn. R. Civ. App. P. 139.06 prescribes the proper procedure for seeking attorney fees on appeal.  Olson did not comply with rule 139.06, nor is he the prevailing party.  Therefore, we decline to grant fees and costs on appeal.