This opinion will be unpublished and

may not be cited except as provided by

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







In re


Marcia J. Schirber,

f/k/a Marcia J. Blenkush, petitioner,




Roger J. Blenkush,




Filed December 9, 2003


Lansing, Judge


Wright County District Court

File No. F8-90-2241



David Izek, 140 Bassett Creek Business Center, 901 North Third Street, Minneapolis, MN 55401-1001 (for respondent)


Jane Binder, Christine Howard, Suite 200, 510 Marquette Avenue South, Minneapolis, MN 55402 (for appellant)


            Considered and decided by Schumacher, Presiding Judge, Lansing, Judge, and Poritsky, Judge.*


U N P U B L I S H E D   O P I N I O N


            The district court denied Roger Blenkush’s motion to terminate or reduce his child support obligation and rejected his constitutional challenge to the inclusion of mentally impaired persons within the definition of “child” in Minn. Stat. § 518.54, subd. 2 (2002).  Because the district court did not abuse its discretion in denying the modification motion and because the structure of Blenkush’s obligation has been determined not only by statute, but also by his stipulation with Marcia Schirber, we affirm the denial of the modification and the rejection of the constitutional challenge.


            Marcia Schirber and Roger Blenkush dissolved their twenty-three year marriage in 1992.  The dissolution judgment incorporated a stipulation on property division, spousal maintenance, custody of their three children, and child support.

The stipulated judgment specifically provided for the support of their sons M.J.B. and M.R.B. who, according to the judgment, “are mentally handicapped and each may not be able to support himself.”  The provision required Blenkush to pay $1,400 monthly child support for the three children, with a reduction to $1,200 in 1993 when the middle child, A.J.B., turned eighteen.  The child support was to continue at this amount until M.J.B. became “self supporting or becomes a ward of the state” at which time the support would be reduced to $1,000 a month and would continue at that amount until M.R.B. became “self supporting or becomes a ward of the state.” 

            The child support was reduced to $1,200 when A.J.B. turned eighteen.  In 1998 the district court reduced the monthly child support for M.J.B. and M.R.B. to $1,108 because M.J.B. had obtained employment with a net monthly income of $524.50.  In the 1998 modification the court also decreased, by half, Blenkush’s spousal-maintenance obligation to Schirber and comprehensively analyzed Blenkush’s and Schirber’s financial circumstances.  The child support reduction provided that “[s]upport shall continue at this rate until [M.J.B.] is fully self-supporting or becomes a ward of the state AND [M.R.B.] is fully self-supporting or becomes a ward of the state.”  Approximately three years later, Blenkush again moved to reduce or eliminate his child support obligation and asserted a constitutional challenge to Minn. Stat. § 518.54, subd. 2 (2002), which includes mentally impaired persons within the definition of “child.”  At that time M.J.B., age twenty-eight, had a net monthly income of $725-$825, and M.R.B., age twenty-one, had a net monthly income of $650-$725.  The district court bifurcated the hearing on the statutory and constitutional claims.

            Following the hearing on the statutory claims, the district court found that M.J.B. and M.R.B. were not self-supporting and denied the motion to terminate or reduce child support.  The court also found that Blenkush had not established a substantial change in circumstances that made the current payments unreasonable or unfair.  Following the hearing on the constitutionality of the definition of “child” in Minn. Stat. § 518.54, subd. 2, the court found the statute constitutional under both the United States and Minnesota Constitutions.  This appeal followed.



A district court has broad discretion in modifying child support orders and will be reversed only if it abused its discretion by reaching a conclusion that is contrary to logic and the facts.  Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999).  Modification is warranted if the moving party shows a substantial change in circumstances that makes the existing child support obligation unreasonable or unfair.  See Minn. Stat § 518.64, subd. 2(a) (2002).

In denying Blenkush’s motion to reduce or terminate child support, the district court found, first, that M.J.B. and M.R.B. had not become self-supporting and, second, that Blenkush was currently paying less than the guidelines amount and had failed to show a substantial change in circumstances that made the existing support amount unreasonable or unfair.  Blenkush challenges both findings.

Schirber is the conservator for both children.  To determine whether M.J.B. and M.R.B. had become self-supporting, the district court analyzed the annual account that Schirber filed as conservator for M.J.B.  Comparing listed expenses to income, the court found that M.J.B. and M.R.B. were not self-supporting and would not be able to take care of their basic living needs on an independent basis.

Blenkush contends that M.J.B.’s expenses, excluding a $1,592.18 purchase of a bed and mattress, amounted to $620.29 a month, which is less than M.J.B.’s income.  He theorizes that M.R.B.’s expenses would be similar.  But the purchase of the bed and mattress are reasonable expenses which should not be excluded from the calculation of total expenses.  Furthermore, in its order on the 1998 motion, the district court found that M.J.B. and M.R.B.’s monthly expenses amounted to $1,805.14.  The record does not indicate that these expenses have decreased.  Finally, the court reasoned that these expenses do not take into account Schirber’s assistance in M.J.B.’s and M.R.B.’s daily living that includes transportation, cooking, laundry, shopping, and other assistance.  The court concluded that Blenkush had failed to demonstrate M.J.B.’s or M.R.B.’s self-sufficiency because, on their current income, they would not be able to take care of their basic living needs on an independent basis.  The district court’s findings are supported by the record, and the corresponding conclusions are consistent with logic and the facts.  The district court did not abuse its discretion in finding that M.J.B. and M.R.B. are not self-supporting.

In determining whether Blenkush had demonstrated a change in circumstances that made the current $1,108 monthly child support unreasonable or unfair, the district court compared income and expenses determined in the 1998 proceeding to the current income and expenses.  In 1998 Blenkush had a net monthly income of $4,374 and net monthly expenses of $3,870.  Schirber had a net monthly income of $897 and net monthly expenses of $3,165.46 for her and M.J.B. and M.R.B.  The district court found that Blenkush’s current net monthly income was $3,919.15 and his current net monthly expenses were $3,000.  The court found that Schirber’s net monthly income was $1,125-$1,200.  The court did not make a specific finding on Schirber’s monthly expenses.

Schirber introduced tax records that indicated that Blenkush’s gross income in 1999 was $96,485 and in 2000 was $146,287.  During the hearing Blenkush admitted that his net income was currently higher than what it was when his child support obligation was set in 1998.  But he claimed that he owed his employer $13,000 for payments that he had received in excess of his earned commissions.  This debt would make his income lower than the base income at the time of the 1998 modification.  But the money Blenkush owed his employer was a personal debt, not considered for purposes of determining net income under Minn. Stat. § 518.551, subd. 5 (2002).  See Merrick v. Merrick, 440 N.W.2d 142, 146 (Minn. App. 1989) (noting personal debt need not be considered in setting child support obligation); Minn. Stat. § 518.551, subd. 5.

The court found that the guidelines support obligation for Blenkush’s monthly net income of $3,919.15 was $1,175.75, and that his present obligation of $1,108 was a downward deviation.  The court further found that Blenkush failed to show a substantial change in circumstances that would make the existing support unreasonable or unfair.  The record supports the district court’s findings.  The findings that Blenkush had a net monthly income of $4,374 in 1998 and a net monthly income of $3,919.15 in 2001 reflect a decrease of approximately $455 a month during that time period.  The corresponding decrease in his reasonable expenses from $3,870 in 1998 to $3,000 in 2001 would mean that he did not have less money available to assist in the support of M.J.B. and M.R.B.  The district court did not abuse its discretion in denying the modification.



            For purposes of determining child support, a “child” is defined as “an individual under 18 years of age, an individual under age 20 who is still attending secondary school, or an individual who, by reason of physical or mental condition, is incapable of self-support.”  Minn. Stat. § 518.54, subd. 2 (2002). 

Blenkush challenges the constitutionality of Minn. Stat. § 518.54, subd. 2, contending that it denies him equal protection of the law because it creates “a statutory classification that requires divorced parents to pay child support for adult disabled children when married parents and single parents who were never married do not have a similar obligation.”

It is central to an equal protection challenge under either the Minnesota Constitution or the United States Constitution to show that the challenger is similarly situated to a party who is afforded protection under the law.  Hale v. Viking Trucking Co., 654 N.W.2d 119, 125-26 (Minn. 2002).  Blenkush acknowledges that the child support obligation would apply to an unmarried parent; thus his obligation to support a mentally handicapped child is not different from an unmarried parent’s obligation.  And married parents and parents whose marriages have been dissolved are not similarly situated in their obligations to support their children.  See Zablocki v. Redhail, 98 S. Ct. 673, 690, 434 U.S. 374, 403 (1978) (Stevens, J., concurring) (“[w]hen a State allocates benefits or burdens, it may have valid reasons for treating married and unmarried persons differently.  Classification based on marital status has been an accepted characteristic of tax legislation, Selective Service rules, and Social Security regulations”).

Further, Blenkush’s circumstances are different in another significant way.  He specifically stipulated in an agreement incorporated in his dissolution judgment to the provision of support for his two sons, M.J.B. and M.R.B.  The provision stated that child support would continue until each child was “self supporting or [became] a ward of the state.”  This provision was reincorporated into the judgment in the 1998 modification order.  The dissolution judgment did not explicitly refer to Minn. Stat. § 518.54, subd. 2.

Blenkush argues that the constitutionality of his continued child support obligation should be analyzed solely under the statute and not based on the stipulation because the district court did not specifically rely on the language of the stipulation in denying his constitutional challenge, and Schirber did not file a notice of review.  His attempts to narrow the analysis are unavailing.  First, the district court did not specifically rely on the statute in making its ruling on constitutionality.  Furthermore, a prevailing party is not required to file “a notice of review on . . . [an issue where] the trial court has failed to rule on a question litigated and practical reasons continue to render such a notice unnecessary.”  Hoyt Inv. Co. v. Bloomington Commerce & Trade Ctr. Ass., 418 N.W.2d 173, 175 (Minn. 1988); see also Acton Constr. Co. v. State, 363 N.W.2d 130, 134-35 (Minn. App. 1985), review denied (Minn. May 22, 1986).  We also note Blenkush did not challenge the constitutionality of the provision at the time of the original judgment or the 1998 amended judgment.  See Fugina v. Donovan, 259 Minn. 35, 37, 104 N.W.2d 911, 913 (1960) (when purely private interests are involved, doctrine of laches may apply to constitutional challenges).

Parties to a marriage dissolution may bind themselves to a higher level of performance than what courts require of them.  Plath v. Plath, 393 N.W.2d 401, 403 (Minn. App. 1986).  A stipulation may waive a constitutional right if the stipulation was a result of careful negotiation and the party was represented by experienced counsel throughout the proceeding.  See Jones v. Jones, 300 Minn. 182, 190, 220 N.W.2d 287, 292 (1974); see also Loo v. Loo, 520 N.W.2d 740, 746 n.6 (Minn. 1994) (noting a stipulation may divest the district court of jurisdiction to modify spousal maintenance if the court makes specific findings as listed in Minn. Stat. § 518.552, subd. 5 (Supp. 1989)).  Although the statute provides the court jurisdiction, the child support obligation flows not from the operation of the statute but from the operation of the stipulation.  Blenkush’s constitutional argument lacks an adequate factual or legal foundation.


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