This opinion will be unpublished and

may not be cited except as provided by

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






In re: Linda Diane Freeman, petitioner,





Joseph Lawrence Freeman,



Filed May 28, 2002

Reversed and remanded

Gordon W. Shumaker, Judge


Cass County District Court

File No. F893394



George L. Duranske III, Duranske Law Firm, 1435 Anne Street Northeast, Post Office Box 1383, Bemidji, MN 56619 (for respondent)


Richard Kenly, Kenly Law Office, P.O. Box 31, Backus, MN 56435 (for appellant)



            Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N




Appellant contends that the district court gave impermissible retroactive application to an amended statute.  The amendment provides that there is no automatic reduction of child support when the original judgment fixes a single sum for multiple children and one or more of the children become emancipated.  Because the court’s application of the amended statute altered a substantive provision of the judgment, we reverse and remand.


On March 28, 1994, the district court entered judgment dissolving the marriage of appellant Joseph Freeman and respondent Linda Freeman and requiring appellant to pay a single monthly amount in child support for the parties’ three minor children:

[Appellant] shall pay to [respondent] an amount as and for child support equal to the Minnesota statutory guidelines in effect at the time, which said amount is agreed to be $665.00 per month at the time of entry of judgment.


About one and one-half years later, the parties stipulated to an increase in the support amount:

IT IS HEREBY STIPULATED that by and between the parties that child support shall be adjusted nunc pro tunc to $960.00 per month effective July 1, 1995.


The district court entered its order on the stipulation on November 16, 1995.

Appellant was required to make child support payments to Cass County.  When the eldest child became emancipated in 1999, appellant asked the county to reduce his support obligation.  The county told him that the support amount could not be automatically reduced, but rather any reduction would have to be by court order.  Appellant made a similar request of the county and received a similar response in 2001, after the second child became emancipated in 2000.

In 2001, appellant moved to modify his child support obligation, contending that he was entitled to an automatic reduction of support upon the emancipation of each child.  A child support magistrate heard the motion, disagreed with appellant, and denied the motion. The district court affirmed the magistrate’s order.

Contending that both the magistrate and the district court incorrectly applied an amended version of the controlling statute instead of the statute in effect when the judgment was entered, appellant appeals.


The district court reviews a child support magistrate’s decision de novo.  Blonigen v. Blonigen, 621 N.W.2d 276, 280 (Minn. App. 2001), review denied (Minn. Mar. 13, 2001).  This court reviews the district court’s order confirming a magistrate’s decision on child support issues under an abuse-of-discretion standard.  Davis v. Davis, 631 N.W.2d 822, 826 (Minn. App. 2001).

At the time of entry of the judgment of dissolution in 1994, the law provided that

[u]nless otherwise agreed in writing or expressly provided in the order, provisions for the support of a child are terminated by emancipation of the child * * * .


Minn. Stat. § 518.64, subd. 4 (1994).  We have interpreted this statute to require the automatic reduction of child support upon the emancipation of a child.  Beltz v. Beltz, 466 N.W.2d 765, 768 (Minn. App. 1991), review denied (Minn. Apr. 29 and May 23, 1991); Disrud v. Disrud, 474 N.W.2d 857, 859 (Minn. App. 1991).

The legislature amended the statute, effective August 1, 1995, to provide that when child support is not set in a specific amount for each child, the obligor must continue to pay the full amount until the last child is emancipated, unless the court orders otherwise.  Minn. Stat. § 518.64, subd. 4a(b) (Supp. 1995).  See also Minn. Stat. § 645.02 (2000) (stating that, unless otherwise specified, each act enacted by the legislature takes effect the next August 1 following its enactment).

Both parties signed the stipulation to increase the support amount after the effective date of the amendment, and the court’s order based on the stipulation was also entered after that date.  But the stipulation, expressly indicating that it was to operate nunc pro tunc, provided that the support increase would be effective prior to the date of the amendment.

Both the child support magistrate and the district court relied on the amended statute in their respective orders.

The child support magistrate concluded that “[t]here has been a substantial change in circumstances which renders the existing order unreasonable and unfair.  Two of the children are now emancipated.”  But apparently because appellant failed to provide evidence of an appropriate amount of support in light of the changed circumstances, the magistrate denied appellant’s motion to reduce his child support obligation.

Citing McClelland v. McClelland, 393 N.W.2d 224 (Minn. App. 1986), review denied (Minn. Nov. 17, 1986), for the proposition that the law in existence when a modification is ordered is the controlling law, the district court affirmed the magistrate’s determination.

McClelland was the culmination of protracted trial and appellate litigation.  Originally, the district court awarded permanent spousal maintenance to the wife.  Id. at 225.  The husband appealed, and the supreme court reversed and remanded with directions that the district court should determine an appropriate temporary duration of maintenance under relevant statutory law.  Id. 

While the case was still pending, the legislature amended the relevant statute to provide that where there is uncertainty as to the necessity of a permanent award, the court should award permanent maintenance and leave the award open for later modification.  Id.  Finding just such uncertainty, the district court awarded permanent maintenance and reserved jurisdiction for later modification.  Id. at 225-26.  The husband appealed to this court.  Id. at 226.

On appeal, the husband argued that the doctrine of “law of the case” required that the district court follow the supreme court’s remand instructions rather than the amended statute.  Id.  We held that the law-of-the-case doctrine “must yield to an intervening change of controlling law,” unless the new law would alter a mature or vested right, would impose new and unanticipated obligations, or “would work some other injustice due to the nature and identity of the parties.”  Id. at 226-27 (citations omitted).  We determined that it was doubtful that spousal maintenance is a vested right.  Id. at 227.  We also held that, in any event, there can be no vested right until a final judgment is entered, and there was no final judgment as of the time of the change in the law.  Id. at 227.  Finally, we held that the application of the amended statute “did not impose substantially new and unanticipated obligations” on the husband.  Id.

McClelland was decided on an issue different from that raised in the instant appeal.  Because no final judgment had yet been entered, McClelland did not have to decide whether an amended statute is to be given retroactive application to a final judgment entered before the amendment.  This is the issue appellant has raised and argued.  McClelland provides no controlling authority on this issue.

Hadrava v. Hadrava, 357 N.W.2d 376 (Minn. App. 1984), gives some guidance.  After acknowledging that there is “a presumption against the retroactive application of a statute unless the legislature has clearly evidenced that intent * * * ,” we held that child support guidelines were not being applied retroactively to a pre‑guidelines judgment where a motion to increase support was made after the guidelines went into effect and the district court found the requisite change of circumstances to support the modification.  Id. at 379.

But we also pointed out that “the child support obligor is protected against the retroactive application of the modification order itself.”  Id. (citation omitted).  In other words, the amended statute did not reach back and alter the substantive child support obligation in the judgment, but rather merely applied a formula for calculating the amount of child support to be paid.

Here, the amended statute does reach back and affect the support obligation in the judgment.  The judgment reflected the parties’ agreement that the child support guidelines would apply to appellant’s obligation.  Although support was not stated in a separate amount for each child, the obligation was based upon the need to provide support for three children and was set in an amount appropriate under the guidelines for three children.  The effect of applying the amended statute is to require appellant to continue to pay support for three children, even though there remains only one unemancipated minor.  Thus, the new law alters appellant’s substantive support obligation and constitutes an impermissible retroactive application of the law.  The child support magistrate recognized the resulting unfairness in his express conclusion that the existing order is unreasonable and unfair.  The district court adopted that conclusion by affirming.  Respondent has not challenged that conclusion on appeal.

Because the parties agreed that the child support guidelines are to apply, and because the guidelines are based upon the number of children entitled to support, the effect of the order denying a modification is a de facto deviation from the guidelines without the requisite findings.  Thus, the determination that child support is to be based on the need to support three children is erroneous.  Child support must be calculated on the basis of one unemancipated minor child.  The amount of support for that child should be determined under the child support guidelines, as the parties agreed.  That will require a calculation of appellant’s income so that the appropriate amount of support can be determined.  The matter must be remanded for the appropriate determinations consistent with this opinion.

Reversed and remanded.