This opinion will be unpublished and

may not be cited except as provided by

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






Paul T. Schmidt, petitioner,





Merry L. Schmidt, n/k/a

Merry L. Spears,



Filed August 19, 2003


Toussaint, Chief Judge


Ramsey County District Court

File No. FX-99-2816


Evon M. Spangler, Huot and Spangler, 779 East 7th Street, St. Paul, MN  55106 (for appellant)


Thomas W. Tuft, Valerie Downing Arnold, Tuft Law Offices, 1590 White Bear Avenue North, St. Paul, MN  55106; and


Susan Gaertner, Ramsey County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)


            Considered and decided by Halbrooks, Presiding Judge, Toussaint, Chief Judge, and Forsberg, Judge.*


U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant challenges an order by the district court that affirmed a child support magistrate’s (CSM’s) denial of his motion to reduce his obligation to pay child support to respondent.  The district court concluded that although appellant had met the presumption that the existing order was unreasonable and unfair, the facts in the record rebutted that presumption because in the previous year he had received a lump sum payment of $123,248 from his pension fund, which the court considered a “resource” available for child support.  The district court further affirmed the CSM’s denial of appellant’s motion for forgiveness of child support arrears of $9,738.

            Because the district court did not abuse its discretion or otherwise err in concluding that the presumption was rebutted by appellant’s receipt of a lump sum payment from his pension plan, we affirm the district court’s denial of his motion to reduce his child support obligation.  Because appellant failed to establish that he is entitled to partial forgiveness of his arrears by reason of his mental disability under Minn. Stat. § 518.64, subd. 2(d)(1) (2002), we affirm the district court on that issue as well.


            A district court “enjoys broad discretion in ordering modifications to child support orders.”  Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999) (citation omitted).  An abuse of discretion exists if the court made “a clearly erroneous conclusion that is against the logic and the facts on [the] record.”  Id. (quoting Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984)).


            The terms of an order regarding child support may be modified upon a showing that there has been a substantial increase or decrease in the earnings of the obligor.  Minn. Stat. § 518.64, subd. 2(a)(1) (2002).  An existing order is rebuttably presumed to be unreasonable and unfair if application of the child support guidelines to the current circumstances results in a calculation of child support that is at least 20% and at least $50 higher or lower than the current support order.  Minn. Stat. § 518.64, subd. 2(b) (2002).

            The district court here determined that although appellant met the presumption by showing that his income had decreased by at least 20% or $50, the facts in the record rebutted that presumption.  In particular, those facts established that appellant received a lump sum payment from his pension of over $123,000 in 2001 and that he received another payment in March 2002 of over $13,000 for retroactive long-term disability benefits.  The district court reasoned that these payments constitute “resources” available to appellant when determining whether to modify child support.

            Minn. Stat. § 518.64, subd. 2(c) (1) (2002) directs a court to apply section 518.551, subd. 5, when considering a motion for modification of support.  Minn. Stat. § 518.551, subd. 5(c) (2002), in turn, provides:

“[I]n addition to the child support guidelines, the court shall take into consideration the following factors in setting or modifying child support * * * : 

(1)             all earnings, income, and resources of the parents[.]” 


“Resources” is not specifically defined, but “income” is defined as follows:

“Income” means any form of periodic payment to an individual including, but not limited to, wages, salaries, payments to an independent contractor, workers’ compensation, unemployment benefits, annuity, military and naval retirement, pension and disability payments.


Minn. Stat. § 518.54, subd. 6 (2002).

            Appellant argues that the district court improperly considered his lump sum payment of $123,000 from his pension fund when denying his motion to modify child support.[1]  Appellant notes that he received the payment from the pension fund in 2001, almost one year before the district court issued its order, and that he has spent the entire amount to pay off debts that he incurred for day-to-day living expenses while he had no income, between March 26, 2001, when he became disabled and unable to work, and September 2001, when he first started to receive long-term disability benefits.

            The district court determined that despite appellant’s disability, his income and cash assets enable him to continue to make his child support payments without a modification.  The district court’s decision is fully consistent with the above-quoted statutes and with case law.  See, e.g., Kuronen v. Kuronen, 499 N.W.2d 51, 54 (Minn. App. 1993) (reversing suspension of child support obligation during obligor’s incarceration, where court considered obligor’s 401K worth $20,000 to be an asset allowing obligor to continue child support payments), review denied (Minn. June 22, 1993).  We therefore conclude that the district court did not err or otherwise abuse its discretion in considering appellant’s lump sum payment from his pension to be a “resource” available to him to pay his child support obligation.[2]


            Appellant argues that the district court erred by denying his request for partial forgiveness of his arrears, or for retroactive modification of his child support obligation.  Appellant also argues that he is entitled to retroactive modification as of March 2001, when he was first unable to work due to his mental illness, or alternatively, since October 2001, the date that his prior modification motion was denied.  His current motion was not filed until July 2002.

            A decision to modify support

may be made retroactive only with respect to any period during which the petitioning party has pending a motion for modification but only from the date of service of the motion on the responding party.


Minn. Stat. § 518.64, subd. 2(d) (2002).  The statute further provides:

[M]odification may be applied to an earlier period if the court makes express findings that:

            (1)  the party seeking modification was precluded from serving a motion by reason of a significant physical or mental disability * * * and that the party seeking modification, when no longer precluded, promptly served a motion; [or]

            (2) the party seeking modification was a recipient of federal Supplemental Security Income (SSI), * * * other disability benefits, or public assistance based upon need during the period for which retroactive modification is sought[.]


Id.  The statute permits retroactive modification but does not mandate it.  See Guyer v. Guyer, 587 N.W.2d 856, 859 (Minn. App. 1999) (explaining that use of “may” in Minnesota statutes is permissive and citing Minn. Stat. § 518.64, subd. 2(d) as an example), review denied (Minn. Mar. 30, 1999).

            As respondent argues, appellant has suffered from depression since well before the parties’ divorce in June 2000.  Since that divorce, and despite his mental illness, appellant has been able to file three motions to modify child support, respond to respondent’s motion for spousal maintenance, and file other motions and miscellaneous requests for review.  All of appellant’s prior motions were denied.  Appellant cannot now attempt to reopen these prior orders, nor can he reasonably claim that he was precluded from earlier serving a modification motion by reason of a mental disability.

            We therefore affirm the district court’s order in its entirety.



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

[1] Appellant concedes that the $13,000 payment for retroactive long-term disability benefits was properly considered because it represents “income” under Minn. Stat. § 518.54, subd. 6 (2002).

[2] Respondent also argued, in the alternative, that appellant’s motion to modify child support was barred by the doctrine of collateral estoppel because his present motion is substantially identical to his prior motions.  Given our decision affirming the district court’s denial of appellant’s motion to modify, we need not rely on this as a basis to affirm the district court.