This opinion will be unpublished and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

C0-01-1065

 

In re the Matter of:

Kim Elizabeth Dally,

 n/k/a Kim Elizabeth McDaniel,

petitioner,

 Respondent,

 

vs.

 

Wayne Gordon Dally,

Appellant.

 

Filed March 19, 2002

Affirmed in part, reversed in part, remanded

Poritsky, Judge*

 

Dakota County District Court

File No. F69615349

 

 

Jori L. Whitehead, Whitehead Law Office, 2412 117th Street East, Burnsville, MN  55337 (for respondent)

 

 

Wendy J. Mellum, Robert E. Lieske, Wagner, Falconer & Judd, Ltd., 3500 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)

 

            Considered and decided by Schumacher, Presiding Judge, Hanson, Judge, and Poritsky, Judge.

U N P U B L I S H E D  O P I N I O N

PORITSKY, Judge

            In this child-support-modification proceeding, appellant-father alleges that the district court (a) misapplied Minn. Stat. § 518.57, subd. 3 (2000), when it determined that two children, for whom father had a support obligation, had not been integrated into father’s home with the consent of respondent-mother; and (b) misapplied Minn. Stat. § 518.64, subd. 2(d) (2000), by concluding that a redetermination of father’s support obligation was effective as of a date prior to Dakota County’s service of a motion seeking the redetermination.  We affirm in part, reverse in part, and remand to the district court for further proceedings consistent with this opinion.

FACTS

            Appellant Wayne Dally (Dally) and respondent Kim McDaniel (McDaniel) were divorced in 1996.  The stipulated judgment and decree awarded the parties joint legal custody of their five children.  Dally was awarded physical custody of the two older children, Adam and Elizabeth; McDaniel was awarded physical custody of the three younger children, Jeremiah, Jason, and Adam.  The decree further provided:  “That upon Elizabeth’s graduation from high school the child support shall be redetermined and set at 35% of the [father’s] net monthly income.”

            Elizabeth graduated from high school in June 1999.  In November 1999, 16-year-old Jeremiah moved in with Dally.  Dally testified that he never discussed Jeremiah’s move with McDaniel, although she was aware of it.  McDaniel testified that Jeremiah left her home without her permission, and that he subsequently refused to speak with her.     

In May 2000, after an incident in which Jason, then 13, allegedly jumped on McDaniel and threatened her during a school meeting, McDaniel sought an order for protection against Jason.  In her supporting affidavit, McDaniel stated that Jason’s address was the same as Dally’s.  After Jason had received inpatient care at Fairview-Riverside Hospital, a doctor recommended that he be released into his father’s care because he had been making angry comments about his mother.  Jason has resided with Dally since that time.  McDaniel, who testified that she did not agree to the boys’ living with their father, has attempted unsuccessfully to arrange a meeting with Dally and to reconcile with Jason and Jeremiah through the parties’ church.

            In May 2000, the district court appointed a guardian ad litem to submit a report concerning Jason’s temporary and permanent physical custody.  The court ordered that pending the outcome of this matter, the order for protection should remain in force, and Jason should continue to reside with this father. 

             In July 2000, Dakota County moved to re-calculate Dally’s child-support obligation in order to set it at 35% of Dally’s net monthly income, pursuant to the decree.  In response, Dally contended that (1) the revised child support should be calculated only from the date of the filing of the motion, and (2) pursuant to Minn. Stat. § 518.57, subd. 3 (2000), he should not owe support for Jason and Jeremiah because they had been integrated into his family with McDaniel’s consent. 

The matter was referred to a child-support magistrate, who found that McDaniel had not consented to either Jason’s or Jeremiah’s living with Dally, and therefore neither of the boys had been integrated into Dally’s family.  As a result, the magistrate concluded that Dally’s support obligation for both children remained unsatisfied.  The court also found that because the prior order concerning payment of support after Elizabeth’s high school graduation contained the word “shall,” recalculation of child support after that event was mandatory.  At the time of the hearing, the magistrate apparently was not aware that Dally had sought and received an order for protection against Jason.  After the district court affirmed the magistrate’s order, this appeal followed. 

D E C I S I O N

             A district court’s decision on support-related matters is discretionary, and we review the decision for abuse of discretion.   Rogers v. Rogers, 622 N.W.2d 813, 822 (Minn. 2001) (modification of support); Tell v. Tell, 383 N.W.2d 678, 681 (Minn. 1986) (payment of arrearages).  Whether a child is integrated into a parent’s home with the consent of the other parent is a factual question, which is reviewed under a clearly erroneous standard.   See Greenlaw v. Greenlaw, 396 N.W.2d 68, 71 n.1 (Minn. App. 1986) (discussing factual finding that child was not integrated into non-custodial parent’s family was clearly erroneous standard). 

            Under Minn. Stat. § 517.57, subd. 3 (2000): 

The court may conclude that an obligor has satisfied a child support obligation by providing a home, care, and support for the child while the child is living with the obligor, if the court finds that the child was integrated into the family of the obligor with the consent of the obligee * * * .

Dally argues that because Jeremiah and Jason have been integrated into his family with the consent of McDaniel, his support obligation for both children has been satisfied.  He cites Gibson v. Gibson, 471 N.W.2d 384, 386 (Minn. App. 1991), review denied (Minn. Aug. 12, 1991), as support for the proposition that if a child has been living with the obligor, absent fraud, coercion, or kidnapping, the court must find that there was consent for integration into the obligor’s home.  However, we do not read Gibson so broadly.  The mere absence of fraud, coercion, or kidnapping does not in itself compel a finding of consent.  See id. (“It follows that if the child has been integrated * * * consent for the occurrence will normally exist in the absence of kidnapping, fraud, or coercion.”) (Emphasis added).

            In this case, as to Jeremiah, the district court approved the magistrate’s finding that McDaniel did not consent to the child’s integration into Dally’s family.  Because this is a factual question, the district court’s findings must be sustained unless clearly erroneous.  See Greenlaw, 471 N.W.2d at 386 n.1.  The magistrate found, among other things, that neither Jeremiah nor Dally informed McDaniel of Jeremiah’s plan to move, that McDaniel made attempts, both through her church and her attorney, to get Jeremiah to return, and that McDaniel continues to incur expenses for a home for Jeremiah and a van to transport him and another child. The magistrate’s finding that McDaniel did not consent to Jeremiah’s integration into Dally’s family is supported by the evidence and will be affirmed. 

            Likewise, the district court affirmed the magistrate’s finding that McDaniel did not consent to Jason’s integration into Dally’s family.  However, in reviewing this finding, we take judicial notice of the order for protection that McDaniel obtained against Jason.[1]   At the time of the hearing before the magistrate, Dally was not aware of the existence of this order and was thus unable to present it to the magistrate for her consideration. We conclude that when McDaniel sought an order excluding Jason from her home and, in the process of obtaining the order, stated to the court that the boy was residing with his father, as a matter of law McDaniel consented to Jason’s integration into Dally’s family as of the date she filed her application for the order.  Therefore we remand the case to the district court with instructions to enter an order stating that Dally’s support obligation for Jason is satisfied beginning May 17, 2000, (the date McDaniel signed the application for the OFP) and for as long as Jason continues to reside with Dally.

In examining the issue of when Dally’s support obligation increased by virtue of Elizabeth’s graduation from high school, we consider whether the magistrate’s order determining the new amount of his obligation constituted a “modification” within the meaning of Minn. Stat. § 518.64, subd. 2 (d) (2000).   Dally contends that the change in support constituted a modification under the statute, and, consequently, the modification may be made retroactive only as of the date Dakota County’s motion was served.  See Minn. Stat. § 518.64, subd. 2(d).

Black’s Law Dictionary defines “modify” as:

To alter; to change in incidental or subordinate features; enlarge, extend; amend; limit, reduce.  Such alteration or change may be characterized, in quantitative sense, as either an increase or decrease.

 

Black’s Law Dictionary 1004 (6th ed. 1990).  The district court here found that the decree mandated a change in the father’s child support as of the date of Elizabeth’s graduation.  We agree.  The decree stated that as of a date certain, Dally’s obligation would be set at a known percentage of his net monthly income.  The court was merely required to recalculate the obligation to determine the amount required by the original decree.[2]   As such, the court’s order determining the new amount was not a modification within the terms of the statute. 

Affirmed in part, reversed in part, and remanded with directions.  



*   Retired judge of the district court, serving as judge of the Minnesota  Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Court records and files from prior adjudicative proceedings constitute an appropriate subject for judicial notice by the court.  In re Welfare of D.J.N., 568 N.W.2d 170, 174 (Minn. App. 1997).  Judicial notice may be taken at any stage of the proceedings.  Minn. R. Evid. 201(f). 

[2] See Linn v. Delaware Child Support Enforcement, 736 A. 2d 954, 965-66 (Del. 1999) (interpreting Minnesota law, noting that a request to compute a specific sum due under previous child support order requiring a percentage payment of support, did not serve as a modification of that order); cf. Allan v. Allan, 509 N.W.2d 593, 596 (Minn. App. 1993) (district court erred in failing to consider statutory factors for modification, when court modified formula used to calculate child support, rather than merely changing amount of support to be paid based on existing formula).