This opinion will be unpublished and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:

Michelle Ann Kalbakdalen, petitioner,





Timothy Scott Kalbakdalen,



County of Red Lake,



Filed October 8, 2002


Toussaint, Chief Judge


Red Lake County District Court

File No. F29872



Michael Lee Jorgenson, 119 West Second Street, P.O. Box 506, Thief River Falls, MN 56701 (for respondent)


Kevin T. Duffy, P.O. Box 715, Thief River Falls, MN 56701 (for appellant)


Daniel L. Geller, P.O. Box 416, Red Lake Falls, MN 56750 (for intervenor)



            Considered and decided by Stoneburner, Presiding Judge, Toussaint, Chief Judge, and Schumacher, Judge.[1]

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Timothy Scott Kalbakdalen challenges an order modifying his child support obligation, arguing the child support magistrate abused his discretion by increasing appellant’s obligation based on appellant’s workers’ compensation settlement.  Because we find no abuse of discretion, we affirm.


            Appellant Timothy Scott Kalbakdalen and respondent Michelle Ann Tenney (f/k/a Michelle Ann Kalbakdalen) dissolved their marriage in 1998 and have two children together.  Appellant was unemployed at the time of the dissolution because of a neck injury he sustained in 1996 while working for Polaris Industries.  As a result, the dissolution decree stipulated that appellant was not capable at the time of paying any child support, but that he was to pay according to the child support guidelines once he returned to full-time employment.  Appellant continued to work part-time for Polaris up until the summer of 2000, including several 40-hour weeks.  Appellant also worked during that period as a self-employed auto body repairman and has helped his family construct buildings in the past few years. 

In November 2000, appellant received a workers’ compensation settlement resulting from his neck injury.  The settlement totaled $161,900 and was allocated as follows: $23,800 for past lost wages, $63,000 for future lost wages, $70,000 for vocational rehabilitation, and $5,100 for compensation for the overpayment of attorney fees.  Appellant continues to repair cars and is contemplating pursuing an education to become a manager of an auto body shop.  But appellant has yet to engage in any vocational rehabilitation. 

            Appellant voluntarily paid $250 per month in child support from January 2000 through May 2001 and also paid the children $250 during the summer months.  Appellant stopped paying child support on September 1, 2001, and soon thereafter respondent moved to modify appellant’s child support obligation.  The child support magistrate granted the motion, finding there had been a substantial change in circumstances since the dissolution decree because appellant’s settlement gave him sufficient resources to now provide financial support for his children.  The magistrate concluded that it would be fair and reasonable to set appellant’s obligation at $350 per month given his substantial assets.  Appellant was also ordered to pay an additional $27 per month toward the children’s health insurance.

            Appellant attempted to seek review of the magistrate’s decision by the district court, but the district court denied his motion for review because appellant failed to properly serve the relevant county agency.  This appeal follows.


Appellant argues (1) the magistrate abused his discretion because the order will force appellant to liquidate the remainder of his settlement to meet his support obligation;  (2) that Lenz v. Wergin, 408 N.W.2d 873 (Minn. App. 1987), requires the court to apportion his settlement money over the remainder of his obligation; (3) only his lost future wages should be used to calculate support and that, when these wages are apportioned over the remaining four years of his obligation, the result is a monthly income of only $525, which is below the statute’s threshold for requiring support payments; and (4) even if the remainder of his settlement ($100,000) is considered, apportionment still only yields a $208 obligation under the guidelines, which is less than the $350 that the court ordered.

The standard of review for a magistrate’s child-support decision is the same as it would be if the decision had been made by a district court.  Ludwigson v. Ludwigson, 642 N.W.2d 441, 445-46 (Minn. App. 2002).  The scope of review for a magistrate’s decision depends on the procedural posture of the case.  Obtaining review of a magistrate’s decision under Minn. R. Gen. Pract. 376 is not a prerequisite to appealing that decision to this court.  Minn. R. Gen. Pract. 378.01.  Rule 376 review of a magistrate’s decision is in the nature of a new trial.  Cf. Minn. R. Gen. Pract. 377.09, subd. 1(b) (noting challenged portions of magistrate’s ruling are reviewed “independent[ly]”.  Therefore, while obtaining Rule 376 review is not required to appeal a magistrate’s decision to this court, not doing so limits this court’ scope of review to the scope of review available for judgments rendered after trial where appeal was taken without a new trial being sought:  Whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law and the judgment.  See Davis v. Davis, 631 N.W.2d 822, 825-26 (Minn. App. 2001) (discussing appeals from magistrate’s decisions).  Here, appellant failed to obtain Rule 376 review of the magistrate’s decision because of defective service.  Our scope of review is therefore limited to whether the evidence supports the findings and whether the findings support the conclusions and the judgment modifying appellant’s support obligation.

Child support obligations may be modified upon a finding of a “substantial change of circumstances making the existing terms of the decree unreasonable and unfair.”  Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993) (citation omitted), review denied (Minn. June 22, 1993).  When considering a modification of a child support obligation, courts must consider “all earnings, income, and resources of the parents, including real and personal property.  Minn. Stat. § 518.551, subd. 5(c)(1) (2000).  “Income” for support purposes is defined as including periodic payment of workers’ compensation benefits.  Minn. Stat. § 518.54, subd. 6 (2000).  Similarly, “resources” include money received in workers’ compensation settlements.  See Lenz v. Wergin, 408 N.W.2d 873, 877 (Minn. App. 1987). 

In Lenz, this court held that the trial court appropriately considered workers’ compensation settlement funds as a “resource,” but that it should have allocated the funds over the years from the date of her injury until her obligation to support the child ceases, to more accurately reflect her earnings.  Id. at 877.

Minn. Stat. § 518.551, subd. 5(c)(1), specifically permits courts to consider all resources of a party when determining his or her obligation, and thus it follows that the statute contemplates that these resources may be used in meeting one’s obligation.  As we have previously noted, the Minnesota Supreme Court has upheld several support obligations that required the obligor to use some of his or her assets to meet the obligation.  See Quaid v. Quaid, 403 N.W.2d 904, 906-07 (Minn. App. 1987) (citing several cases where the supreme court affirmed support obligations that require using one’s assets).  Therefore, appellant misconstrues Lenz when he claims that only his lost future wages should be considered in the calculation.  Lenz encompasses all resources received in settlement regardless of their purpose.  See Lenz, 408 N.W.2d at 877 (“In the context of a child support action, this settlement should be viewed as it affects [the] overall obligation to support [the] child.”).

Here, the magistrate based appellant’s $350 per month obligation primarily on appellant’s workers’ compensation settlement.  Appellant’s obligation ends in 2006 when his youngest child turns 18.  Dividing the $161,900 that appellant received by the ten years between the date of his 1996 injury and the end of his obligation yields an annual income of $16,190, or a monthly income of $1,350.  Applying this income to the guidelines with two children results in a monthly obligation of $405.  See Minn. Stat. § 518.551, subd. 5(b) (2000).  In light of the magistrate’s broad discretion, we find no abuse in setting appellant’s obligation at $350 per month.   


[1] The Honorable Daniel F. Foley, one of the founding members of this court, who continued to serve by appointment order from the supreme court after his retirement, fully participated in the consideration of this appeal.  Due to Judge Foley’s untimely death before the filing of the opinion, Judge Robert Schumacher has been assigned as a substitute, and now joins the panel in issuing this decision.