This opinion will be unpublished and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
County of Hennepin,
Filed February 19, 2002
Hennepin County District Court
File No. SP209779
Amy Klobuchar, Hennepin County Attorney, Theresa A. Farrell-Straus, Assistant County Attorney, 110 South Fourth Street, Minneapolis, MN 55401 (for appellant)
Elizabeth Goeman, 5835 South County Road 101, Minnetonka, MN 55345 (pro se respondent)
Considered and decided by Toussaint, Presiding Judge, Randall, Judge, and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
The district court ordered appellant Hennepin County to pay respondent-mother Elizabeth Goeman $300 in child support because appellant's late service of respondent's child support papers on the father, Michael Coupe, caused respondent to lose one month's support. Appellant challenges the order, alleging the court had no authority to order appellant to pay support and that service on Coupe was completed to the best of appellant's ability. In the alternative, appellant argues that if the award was an attempt to assess attorney fees against appellant, it was improper because there is no authority allowing the court to do so and appellant did not unduly prolong the proceedings. We reverse.
Respondent and Coupe had a child for which appellant provided public assistance. While Coupe agreed to reimburse appellant for the public assistance, his prospective support obligation was reserved. On January 10, 2001, respondent, pro se, moved for prospective support from Coupe. The district court ordered appellant to serve Coupe with respondent's papers, which appellant did on February 9. After a hearing, a child support magistrate set Coupe's prospective monthly support obligation at $300. The magistrate also directed that appellant pay respondent $300 for the support she did not receive between January 10, 2001 and February 8, 2001. Appellant sought review of this part of the magistrate’s order but did not provide the district court with a transcript of the hearing before the magistrate. The district court denied the request to alter the magistrate’s order and the county appeals.
We conclude that the district court erred in ordering appellant to pay respondent child support. At oral argument, appellant's counsel stated that the funds had been paid to respondent, but that if the appeal was successful, appellant would not pursue either respondent or Coupe for reimbursement. Appellant stated its only concern is the lack of authority for the initial order. We appreciate appellant's candor on this point.
Because appellant did not provide the district court with a transcript of the hearing before the child support magistrate, we cannot consider the transcript of that hearing presented on appeal. Davis v. Davis, 631 N.W.2d 822, 826 (Minn. App. 2001).
Appellate courts review a district court’s confirmation of a child support magistrate’s decision under an abuse of discretion standard of review. Id. An abuse of discretion occurs when the district court improperly applies the law. Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993), review denied (Minn. June 22, 1993). In child support proceedings, appellate courts can act de novo to correct erroneous applications of the law. Guyer v. Guyer, 587 N.W.2d 856, 858 (Minn. App. 1999), review denied (Minn. Mar. 30, 1999). Here, neither the magistrate nor the district court cited any authority requiring or allowing appellant to be ordered to pay respondent.
Coupe previously signed a recognition of parentage. A recognition of parentage generally "has the force and effect of a judgment or order determining the existence of the parent and child relationship under section 257.66" and is a basis for actions "establishing child support" and seeking reimbursement for public assistance. Minn. Stat. § 257.75, subd. 3 (2000). Whether support is set in a support proceeding or in a reimbursement proceeding, it is to be set under chapter 518. See Minn. Stat. §§ 257.66, subd. 3 (establishing child support), 256.87, subd. 1a (2000) (reimbursement of public assistance); see also Minn. Stat. § 518.551, subd. 1(a) (2000) (stating child-support statute applies "to all proceedings involving a support order").
Under chapter 518, "child support" is an award "for * * * any child of the marriage or of the parties to the proceeding" or "a contribution by parents ordered under section 256.87." Minn. Stat. § 518.54, subd. 4 (2000). Appellant was neither married to respondent nor is appellant a "parent" of the child. Therefore, even if the question of whether appellant could be ordered to pay respondent could be addressed within the narrow confines of the expedited child support process, the payment ordered by the district court cannot be child support.
Appellant felt that the award might have been, in the eyes of the district court, an award of attorney fees against it for its failure to promptly serve Coupe with respondent's papers. Again, we appreciate appellant's candor. However, there are no words in the district court's order that mentions anything other than child support. Also, it may have been unclear to the district court, as it is unclear to us, what attorney fees respondent incurred "by proceeding pro se." It does not appear from this record that the propriety of ordering appellant to pay $300 to compensate respondent for one month of child support turns on whether the award can legitimately be called attorney fees or not. Also, attorney fees "are not recoverable in litigation unless there is a specific contract permitting or a statute authorizing such recovery." Barr/Nelson, Inc. v. Tonto’s, Inc., 336 N.W.2d 46, 53 (Minn. 1983). If attorney fees are awarded, the authority allowing the award must be identified. See Geske v. Marcolina, 624 N.W.2d 813, 816 (Minn. App. 2001) (stating that because there are different requirements for fee awards depending on which of the several potentially applicable authorities are used to make the award, “a proper review requires that the district court identify the authority for its award”). Here, the award was not identified as an attorney fee award and no authority for an attorney fee award was cited.
On this record, the propriety of awarding attorney fees for a delay in service would depend on whether that delay was reasonable; a question appellant did not know the magistrate would address and on which appellant had no reason to present evidence. We note that no request for attorney fees from appellant was included in respondent's papers. Thus, appellant did not have a reason at the hearing before the magistrate to address whether the delay in serving the papers, if there was one, was unreasonable. The district court’s order directing appellant to serve Coupe did not specify a date by which Coupe had to be served. Also, the papers served on Coupe were served by mail and indicated that he had 20 days to respond. Thus, if Coupe had been served by mail on January 8, 2001 and had taken 20 days to serve his response, that response would have been timely if put in the mail for service and filing on January 31, 2001. See Minn. R. Gen. Pract. 353.04 (allowing person three additional days to complete an act if served by mail); 355.03 (service by mail complete upon mailing). A child support magistrate’s order "is effective and final when signed by the child support magistrate." Minn. R. Gen. Pract. 370.02. Therefore, it is not at all clear that an effective order could even have been in place during January 2001. Cf. Minn. Stat. § 518.17, subd. 3(a) (2000) (stating district court may make order as it deems "just and proper" concerning child support); Borcherding v. Borcherding, 566 N.W.2d 90, 93 (Minn. App. 1997) (stating district court has broad discretion in setting effective date of support modification).
In family cases, the district court has equitable powers. See, e.g., DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755, 757-58 (Minn. 1981) (admitting that dissolutions are statutory proceedings but stating that the district courts are guided by equitable principles and that the district court has inherent power to grant equitable relief “as the facts in each particular case and the ends of justice may require”) (quoting Johnston v. Johnston, 280 Minn. 81, 86, 158 N.W.2d 249, 254 (1968)). Use of such powers, however, requires findings explaining the ruling. Nelson v. Nelson, 384 N.W.2d 468, 471 (Minn. App. 1986). Here, based solely on its allegedly late service on Coupe, and with limited (if any) opportunity to explain its conduct, appellant was ordered to pay respondent, with no findings indicating the authority for the award. The findings do not support the exercise of equitable powers by a child support magistrate or district court judge. See, e.g., Bliss v. Bliss, 493 N.W.2d 583, 590 n.6 (Minn. App. 1992) (stating “[t]he trial court bears the ultimate responsibility to assure that findings and conclusions meet the standards necessary to enable meaningful review”), review denied (Minn. Feb. 12, 1993).
While we reverse the district court's order requiring appellant to pay one month's child support, we state that neither the district court nor the child support magistrate can be faulted for attempting to secure prompt and full payment of child support. We note that we are not ruling that there could never be such egregious conduct by a governmental unit that attorney fees or other monetary sanctions might be in order in favor of a litigant. This record, however, lacks facts showing egregious wrongdoing by appellant.
On the facts of this case, including but not limited to the uncertainty concerning whether service of respondent's papers on Coupe on the last day of the service period would have resulted in an order establishing allowed Coupe to legitimately avoid a support obligation for January 2000, we conclude it is not clear that appellant was negligent in any respect. At this time, we need not explore what might be the circumstances under which a governmental unit might be liable.