This opinion will be unpublished and

may not be cited except as provided by

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






In re the marriage of:

Susan Kathleen Hughes, petitioner,





Thomas Patrick Hughes,



Filed July 16, 2002


Hanson, Judge


Stearns County District Court

File No. F1-99-3166


Daniel A. Eller, 925 South First Street, P.O. Box 638, St. Cloud, MN 56302 (for respondent)


Lori J. Geffre, 250 Carlson Parkway, Suite 112, Minnetonka, MN 55305 (for appellant)


            Considered and decided by Toussaint, Presiding Judge, Kalitowski, Judge, and Hanson, Judge.

U N P U B L I S H E D  O P I N I O N


Appellant-father challenges the district court’s denial of his motion to modify his child support obligation, arguing that the original child support obligation was established without adequate findings to justify an upward deviation from the guidelines and that the district court erred by denying his request for an evidentiary hearing.  Because appellant failed to demonstrate a substantial change in circumstances that would warrant modification of his child support obligation, and the district court did not abuse its discretion by denying an evidentiary hearing, we affirm.


Respondent-mother Susan K. Hughes retained an attorney who drafted a Marital Termination Agreement (MTA).  Appellant-father Thomas P. Hughes was unrepresented but signed the MTA.  On October 1, 1999, the district court entered judgment consistent with the MTA, establishing father’s child support obligation at $1,000 per month.  This was an upward deviation from the statutory guidelines amount.

The dissolution judgment did not contain any findings of fact supporting father’s child support obligation, except for the findings that father’s gross annual income was $40,000 and that mother was unemployed.  But no motion was made for a new trial or amended findings and no appeal was taken from the judgment.

On September 10, 2001, nearly two years after the judgment was filed, father filed a motion for modification of child support, arguing that his child support obligation exceeded the statutory guidelines.  In his accompanying affidavit, father stated that, during the dissolution proceedings, he was told that the statutory guidelines required him to pay $1,000 per month in child support.  Father also asked the court to vacate his arrearages in the approximate amount of $2,533, because his past payments of child support were in excess of the statutory guidelines amount.

            The district court denied father’s motion, finding that he had failed to demonstrate a substantial change of circumstances that would warrant modification of his child support obligation.  Father appeals.


We will reverse a district court’s order regarding the modification of child support “only if we are convinced that the court abused its broad discretion” by reaching a “clearly erroneous conclusion that is against the logic and the facts on [the] record.”  Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999) (alteration in original) (quotation omitted).

The burden rests with the party seeking modification to (1) demonstrate that a substantial change in circumstances has occurred, and (2) show that the substantial change renders the original award unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2 (2000 & Supp. 2001); Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).  To establish a rebuttable presumption that the existing child support order is “unreasonable and unfair,” the moving party must show a change in his earnings that would result in a new order that is at least 20% and $50 per month higher or lower than the current order.  Minn. Stat. § 518.64, subd. 2(b)(1).



Father argues that the district court erred by disregarding the dissolution court’s failure to make specific findings supporting the upward deviation of the child support obligation established in the original decree.  The district court must ordinarily calculatechild support according to the statutory guidelines.  When the court deviates from the guidelines, the statute requires specific findings, even when the parties have entered into a child support stipulation.  Minn. Stat. § 518.551, subd. 5(i) (2000 & Supp. 2001).  (“The court may deviate from the guidelines if both parties agree and the court makes written findings that it is in the best interests of the child) (emphasis added); see also Minn. Stat. §§ 518.551, subd. 5(a) (2000 & Supp. 2001) (directing the court to accept a child support stipulation if it applies the guidelines or meets the conditions for deviation); 518.551, subd. 5(i) (“The court shall review stipulations presented to it for conformity to the guidelines).[1]

Under the statute, as it currently exists and as it existed at the time of the parties’ dissolution, the findings were not sufficient to support the upward deviation in child support.  But the proper remedy for challenging that deficiency was to appeal from the original judgment.  When father did not do so, that judgment became final and it cannot be collaterally attacked in a motion to modify.  See Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966) (stating “[e]ven though the decision of the [district] court in the first order may have been wrong, if it is an appealable order it is still final after the time for appeal has expired”).  Expiration of the time for appeal precludes a party “from seeking to modify or vacate the judgment because of judicial error.”  Erickson v. Erickson, 506 N.W.2d 679, 680 (Minn. App. 1993).

Once the time to appeal from the original judgment expired, father’s sole means to challenge the original judgment was by a motion to reopen the judgment under Minn. Stat. § 518.145, subd. 2 (2000).  See Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997) (holding that where decree is based upon parties’ stipulation, relief is only available under § 518.145); see also Minn. Stat. § 518.551, subd. 11 (2000) (applying § 518.145, subd. 2 to child support awards).

Father did not make such a motion, but instead moved to modify child support.  A motion to modify child support requires that father show a substantial change in circumstances rendering the existing support to be unreasonable and unfair.  See Minn. Stat. § 518.64, subd. 2.  The district court found that father’s income had not changed since the original judgment.  Further, father did not allege, and the court did not find that there had been a substantial change in the cost of living for either party, or that there were extraordinary medical expenses, or an increase or decrease in work-related or education-related child care expenses.  See Id. (setting forth the factors the court must consider prior to modifying a child support obligation).  Thus, father failed to demonstrate a substantial change in circumstances that would warrant a modification of his support obligation.  Accordingly, we conclude that the district court did not abuse its discretion in denying father’s motion to modify his child support obligation.



            Father argues that the district court abused its discretion by failing to conduct an evidentiary hearing.  Whether to hold an evidentiary hearing in a child support modification proceeding is within the district court’s discretion.  See Minn. Stat. § 518.64, subd. 2(f) (stating “[t]he court need not hold an evidentiary hearing on a motion for modification of  * * * support.”).

            Here, the district court asked counsel for both parties whether an evidentiary hearing was required.  Counsel for both parties agreed that an evidentiary hearing would be necessary only if the court first found that the requisite change of circumstances had occurred.  Because father’s argument was based on the lack of factual findings in the original judgment and not on a change of circumstances, the court appropriately found that no change in circumstances had occurred.  Accordingly, the district court did not abuse its discretion by declining to hold an evidentiary hearing.



[1]The legislature enacted these statutory provisions concerning the findings required to support child support awards in 1991, well before the parties’ divorce in this case.  See 1991 Minn. Laws ch. 292, art. 5, § 75 (amending child support guidelines).  These provisions modified our previous holding, in Johnson v. Johnson, 352 N.W.2d 819, 821 (Minn. App. 1984), that findings are required only “when mutual consent is not present.”