This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-03-1

 

In re the Marriage of:

Thomas Harold Mullenmeister, petitioner,

Appellant,

 

vs.

 

Pamela Sue Mullenmeister,

n/k/a Pamela Sue Czech,

Respondent.

 

Filed July 22, 2003

Affirmed in part and reversed in part; motion granted in part

Gordon W. Shumaker, Judge

 

Stearns County District Court

File No. F3014551

 

 

Robert H. Wenner, Reichert, Wenner, Koch & Provinzino, P.A., 501 St. Germain Street, P.O. Box 1556, St. Cloud, MN  56302 (for appellant)

 

Pamela Sue Czech, P.O. Box 52, Holdingford, MN  56340 (pro se respondent)

 

Janelle P. Kendall, Stearns County Attorney, Richard J. May, Assistant County Attorney, Administration Center, RM 448, 705 Courthouse Square, St. Cloud, MN  56303 (for respondent county)

 

 

            Considered and decided by Klaphake, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.


U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            Appellant-father challenges a child support magistrate’s order directing him to pay child support in an amount greater than that required under the child support guidelines and make all child support payments to the Minnesota Child Support Payment Center.  We affirm in part and reverse in part.

FACTS

Appellant Thomas Harold Mullenmeister and Pamela Sue Czech were married in 1999.  They are the parents of one child, a son, born in February 1999.  By 2000, the parties had decided to end their marriage.

            In June 2001, the parties entered into a stipulation for legal separation, which stated that neither party was receiving public assistance.  One month later, the district court issued a judgment and decree of legal separation, which included a finding of fact that Czech was receiving public assistance.

            Mullenmeister commenced a dissolution action several months later.  The district court ordered entry of a judgment and decree of dissolution (“dissolution judgment”), largely based on the terms of the parties’ amended marital-termination agreement.  The dissolution judgment provided that the parties would have joint legal and physical custody of their son.  Furthermore, the district court ordered Mullenmeister to satisfy his child support obligation by paying $400 each month to the St. Stephen Bank, in repayment of a loan that the parties obtained in May 2001, secured by a mortgage on their house.  The dissolution judgment contained a finding that neither party was receiving public assistance.  Several months after the dissolution, Mullenmeister lost his job.  He found another job soon thereafter but at significantly lower pay.

            In June 2002, respondent County of Stearns intervened and moved for modification of child support and for an order directing Mullenmeister to make all child support payments to the Minnesota Child Support Payment Center (MCSPC) on the ground that Czech was receiving public assistance.  A child support magistrate (CSM) denied the county’s motion, concluding that there had been no substantial change in circumstances rendering the existing child support arrangement unreasonable and unfair.  In his order, the CSM noted that under the guidelines Mullenmeister’s monthly child support obligation should be $149 but concluded that an upward deviation to the $400 monthly payment that the dissolution ordered was appropriate because (1) Mullenmeister split the tax exemption for the son with Czech, (2) the dissolution judgment did not order Mullenmeister to pay any child-care expenses, and (3) Mullenmeister’s income from his new job was expected to increase over time.

The CSM’s order did not address whether payments should be made to the MCSPC, and the county served a motion for review on this issue.  Mullenmeister served a countermotion, asking the CSM to reduce his child support obligation from $400 to $149 per month, because of the changed circumstances of his new job and lower income, and to continue allowing him to satisfy his child support obligation by making payments to the bank.  Pursuant to Minn. R. Gen. Pract. 376.03, review of the CSM’s original order was conducted by the same CSM who issued that order.

The CSM granted the county’s motion for review, finding that Czech was receiving public assistance and concluding that Minn. Stat. § 518.551, subd. 1 (2002), required Mullenmeister to make his child support payments to the MCSPC.  The CSM also denied Mullenmeister’s countermotion, again concluding that an upward deviation from the child support guidelines was appropriate.  Mullenmeister appeals.

D E C I S I O N

The district court has “broad discretion” in questions of child support.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  The district court abuses its discretion when it misapplies the law or makes findings of fact unsupported by evidence in the record.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  This court applies the same standard of review to an order issued by a CSM.  Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000).  Here, Mullenmeister argues that the CSM abused his discretion by misapplying the law in (1) deviating upward from the child support guidelines and (2) ordering Mullenmeister to make all child support payments to the MCSPC.

1.         Calculation of child support payment

            Mullenmeister first argues that the CSM misapplied the law by ordering an upward deviation from the child support guidelines and denying his countermotion for modification of child support.  The county argues that this issue was not raised below and thus is not properly before us under Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  But the record indicates that father raised this argument in his countermotion, and we will therefore address it on appeal.

            The CSM concluded that under the child support guidelines, Mullenmeister’s monthly obligation should be $149.  The county does not dispute that the guidelines require Mullenmeister to pay $149 per month, and the record does not indicate that this amount was incorrectly calculated.  Therefore, we affirm the CSM’s conclusion that Mullenmeister’s obligation under the child support guidelines is $149 each month.

            Mullenmeister challenges the CSM’s decision to deviate upward from the child support guidelines and order Mullenmeister to pay $400 per month.  The record establishes that the CSM did not make the findings of fact required by Minn. Stat. § 518.551, subd. 5(c) and (i) (2002), and by Rogers v. Rogers, 622 N.W.2d 813, 819 (Minn. 2001), for an upward deviation from the guidelines.  The record also shows that the CSM based the upward deviation on a finding that Mullenmeister, in his new job, will eventually receive commissions that will increase his income.  But courts must use a payor spouse’s current net income, and not his possible future income, in calculating child support.  Thomas v. Thomas, 407 N.W.2d 124, 127 (Minn. App. 1987).  We conclude that the CSM misapplied the law with respect to an upward deviation from the child support guidelines and thus abused his discretion.  Therefore, we reverse that part of the order directing Mullenmeister to pay $400 per month in child support.

2.         Order that all payments be made to the MCSPC

Mullenmeister next argues that the CSM misapplied the law by ordering him to make all of his child support payments to the MCSPC.  The child support guidelines provide that courts

shall direct that all payments ordered for * * * [child] support be made to the public agency responsible for child support enforcement so long as the obligee is receiving or has applied for public assistance * * * .

 

Minn. Stat. § 518.551, subd. 1(b) (2002) (emphasis added); see Minn. Stat. § 645.44, subd. 16 (2002) (stating “‘[s]hall’ is mandatory.”  The record establishes that Czech is now receiving public assistance, and we conclude that the CSM properly applied Minn. Stat. § 518.551, subd. 1(b), here.  Therefore, we affirm that part of the order directing Mullenmeister to make all child support payments to the MCSPC.

            Mullenmeister contends that if he is required to make a monthly child support payment to the MCSPC and a monthly payment of $400 to the bank, he will, therefore, be making child support payments not only above the guideline amount of $149 but also above the deviation of $400.  It does indicate in the dissolution judgment that the payment to the bank is in satisfaction of Mullenmeister’s child support obligation.  Thus, unless there is a proper basis for requiring him to make payments to both the MCSPC and the bank, a modification of that provision of the dissolution judgment would seem appropriate. 

On appeal, Mullenmeister does not argue that the $400 monthly payment to the bank was in the nature of child support and therefore within the CSM’s jurisdiction.  See Minn. Stat. § 518.551, subd. 5(g) (2002).  Nor does he argue that the CSM’s ruling was an implicit denial of his request to continue satisfying his child support obligation by making payments to the bank.  Therefore, we do not have before us a CSM or district court ruling on whether it would be inequitable to require Mullenmeister to make payments both to the bank and to the MCSPC.  Accordingly, Mullenmeister should address his request for relief from the obligation to the bank to the district court.

3.         Motion to strike

            Mullenmeister has moved this court to strike (1) a temporary order dated July 18, 2000 and issued by the Benton County District Court, which the county included in the appendix to its brief; (2) a statement in the county’s brief that the district court modified the July 2001 judgment and decree of legal separation to include a finding that Czech was receiving public assistance “only after Benton County Human Services specifically was notified of the marriage separation action”; and (3) a statement in the county’s brief concerning whether Czech had ever “lied” to the district court about her receipt of public assistance. 

            In a reply to Mullenmeister’s motion, the county concedes that the temporary order does not appear in the district court file forwarded to this court and that the statement concerning the July 2001 judgment and decree of separation is without support in the record on appeal.  Accordingly, the county agrees that these two items should be stricken from its brief.  The county argues that the statement concerning whether Czech “lied” to the district court about public assistance has support in the record, but we did not rely on this statement in reaching our decision in this case.  Therefore, we grant Mullenmeister’s motion in part and strike the temporary order and the statement concerning the judgment and decree of separation.

Affirmed in part and reversed in part; motion granted in part.