This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1030

 

Kim Marie Bunce, petitioner,

Respondent,

 

vs.

 

John Russell Bunce,

Appellant.

 

Filed May 4, 2004

Reversed and remanded

Randall, Judge

 

Hennepin County District Court

File No. DC 245334

 

Geraldine Carlen Steen, Beckman & Steen, 14550 Excelsior Boulevard, Suite 206, Minnetonka, MN  55345  (for respondent)

 

Richard S. Eskola, 3989 Central Avenue Northeast, Suite 600, Columbia Heights, MN  55421 (for appellant)

 

            Considered and decided by Harten, Presiding Judge, Randall, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

On appeal in this child-support dispute, appellant-father argues (a) the record does not support the district court’s calculation of father’s support arrears; (b) the district court abused its discretion by making respondent-mother’s support obligation to father effective 16 months after he filed his motion to modify support; and (c) the district court should have released father’s funds that had been sequestered under Minn. Stat. § 518.24.  We reverse and remand. 

FACTS

            Appellant, John Bunce, and respondent, Kim Bunce were married on February 12, 1983.  The marriage was dissolved on July 25, 2000, and the dissolution decree awarded respondent sole physical and legal custody of the parties’ two minor children, N.J.B., born October 9, 1984, and C.C.B., born June 26, 1986.[1]  The decree also awarded respondent child support in the amount of $416 per month.  The decree further awarded respondent the cabin real estate, but with the caveat that within thirty days of the entry of the Judgment, respondent was to pay appellant an amount equal to one-half of the net equity in the cabin property as a full, final, and complete settlement using the agreed upon fair market value of $18,400 as a base. 

            Shortly after entry of the judgment and decree, appellant moved for a modification of child support.  A few weeks later, respondent and N.J.B. engaged in a “serious confrontation.”  The “confrontation” ended with N.J.B. moving in with appellant.  Because N.J.B. no longer wanted to live with his mother, appellant used this fact to further support his argument for a modification of child support.          

            Appellant’s motion to reduce his child support obligation was denied on January 25, 2001.  Although N.J.B. was already living with appellant, the district court denied the motion, finding there was no pending motion for a change of custody before the district court, and there was no assurance as to how long N.J.B. would reside with his father.  The district court also determined that appellant was not current with his support obligations and ordered that appellant’s interest in the parties’ cabin be sequestered in order that it be applied toward his existing child support and medical support arrearages and to secure payment of his future support obligations.  Finally, the district court reserved respondent’s motion to sequester appellant’s interest in the homestead.  However, the district court failed to specify the amount of appellant’s arrears. 

            On May 22, 2001, appellant filed the motion for change of custody of N.J.B.  The motion did not request a change in the amount of child support, but did include a request “for such other and further relief as to the court may deem just, fair and equitable.”  On July 25, 2001, the district court ordered a Court Services evaluation concerning the request for change of custody.  In addition to addressing the custody issue, the district court also addressed various property issues.  The district court continued to sequester appellant’s one-half interest in the parties’ cabin to satisfy appellant’s existing arrearages and to secure payment of his future support obligations.  The district court also found that appellant’s one-half share of the net proceeds from the sale of the homestead to be $14,194.88.  Of this amount, the district court ordered that $4,160 be sequestered to secure future payment of appellant’s support obligations.  Although it was alleged by respondent that appellant had never voluntarily paid any of his support obligations, the district court again failed to specify an exact amount of arrears owed by appellant.   

            In March 2002, Court Services issued its report recommending that appellant be awarded sole legal and physical custody of N.J.B.  Shortly thereafter, the parties stipulated to a change of custody, and appellant was awarded sole physical and legal custody of N.J.B.  The only remaining issue before the district court concerned child support.  A hearing was held on September 18, 2002, where the parties were invited to submit evidence on that issue.  The court issued an order on November 22, 2002, awarding appellant child support in the amount of $129.28 per month, and retroactive to June 1, 2001, which was the first month following the date of appellant’s first motion for a modification of N.J.B.’s custody.  The court also continued the sequestration of appellant’s share of monies from the sale of the parties’ homestead and cabin.

            Appellant subsequently moved for amended findings, or in the alternative, a new trial.  The motion was heard on January 23, 2003, and the district court issued an Order on May 23, 2003, modifying its original decision.  The court increased respondent’s child support obligation to appellant, but modified the retroactive commencement date to October 1, 2002, which was the first day of the month following the order actually modifying N.J.B.’s custody.  The 16-month custody difference cost appellant $8,000 in lost retroactive child support.  The court then again determined that arrears in the amount of $4,160 existed, but were satisfied by respondent’s child support obligation that was retroactive to October 1, 2002.  Finally, the court denied appellant’s motion for relief from the sequestered funds.  This appeal followed. 

D E C I S I O N

I.          Arrearages

            In its May 23, 2003 Order, the district court concluded that:

[Respondent] shall have a net child support obligation to [appellant] in the sum of $499.73 retroactive to October 1, 2002 and extending through June 2003 totaling $4,497.57 (9 x $499.73).  Therefore, the total arrearages accrued by [appellant] through May 2001, in the sum of $4,160.00, are satisfied and [appellant] has a credit against his future support to the extent of $337.57. 

 

Appellant argues that there is no evidence in the record to support the district court’s finding that child support arrears existed payable from appellant to respondent in the amount of $4,160.  Findings are clearly erroneous only if this court, on the entire record, is left with the “definite and firm conviction that a mistake was made.”  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  We agree with appellant.  In the order dated July 25, 2001, the referee sequestered $4,160 from appellant’s share of the net proceeds from the sale of the parties’ homestead to be used to secure future payment of appellant’s support obligations.  Appellant speculates that the district court looked at this order and somehow assumed that the $4,160 figure was the amount of appellant’s existing child support arrears.  Also, the figure is equal to ten months of child support.  In the May 23, 2003 order, the district court stated that the total amount of arrearages accrued by appellant through May 2001, totaled $4,160.  Simple math indicates that the district court arrived at this figure by multiplying appellant’s child support obligation ($416) by the number of months from the dissolution of the marriage until the motion to change custody (10).  This implies that the district court concluded that appellant failed to pay any of his support obligations since the marriage was dissolved on July 25, 2000.  We agree it is only an inference, but it is a reasonable inference, and the record is devoid of evidence that appellant is $4,160 in arrears.  Appellant contends that he paid $3,193.30 in child support.  In support of his contention, appellant submitted a document from the Department of Human Services Child Support Enforcement Division that illustrated that he had paid $2,505 in child support.  Appellant also claimed that he paid an additional $658.30 in child support that was not included in the document from the Department of Human Services Child Support Enforcement Division.  Thus, appellant asserted that at most he owed $996.70 in child support arrearages, rather than the $4,160 amount ordered by the district court. 

            It appears that the court obtained the $4,160 figure from a prior order that determined that appellant owed that amount in child support.  But none of the previous orders reached that conclusion.  The only order addressing the $4,160 figure was the July 25, 2001 order that sequestered $4,160 from the net proceeds of the homestead to be used for future support obligations.  Further, the district court failed to address appellant’s contention that he paid portions of his child support obligation as demonstrated by the document from the Department of Human Services Child Support Enforcement Division.  Inferences can be drawn with respect to how the district court arrived at the amount of $4,160 in arrearages and there is nothing in the record to support the district court’s conclusion that appellant actually owed $4,160.  Therefore, we reverse and remand for the district court to make the appropriate findings with respect to the correct amount of arrearages owed by appellant.

II.        Retroactivity

            Appellant also contends that the district court abused its discretion by commencing the child support obligation of respondent to appellant on October 1, 2002, rather than June 1, 2001.    

The decision to apply a modification retroactively rests within the broad discretion of the district court.  Guyer v. Guyer, 587 N.W.2d 856, 859 (Minn. App. 1999), review denied (Minn. Mar. 30, 1999).  As such, a modification of child support will not be reversed absent a clear abuse of that discretion.  Johnson v. Johnson, 304 Minn. 583, 584, 232 N.W.2d 204, 205 (1975).

            Minn. Stat. § 518.64, subd. 2(d) provides that:

A modification of support or maintenance, including interest that accrued pursuant to Section 548.091 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 . . .

 

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

            Here, the district court found that when appellant moved for the custody change at the end of May 2001, appellant did not specifically request a modification of child support.  The court did find that appellant asked for “such other and further relief as may seem fair and equitable.”  With the record at that point, the most reasonable inference is that he wanted child support reduced.  There is no reasonable inference that he wanted child support increased or left the same.  The district court determined that it was not until the September 18, 2002, hearing when the district court invited appellant to submit financial documentation from which appropriate child support calculations could be made that appellant actually submitted any of the pertinent financial information.  Although N.J.B. had been living with appellant since the end of 2000, the district court found appellant was not fully supporting his child.  The court determined that respondent was actually providing many of N.J.B.’s expenses, such as his school clothes, shoes, spending money and medical and dental co-pays.  Based on these findings, the district court ordered respondent’s child support obligation to commence on October 1, 2002, rather than June 1, 2001.

            It is settled law that monetary contributions to a child’s activities and household expense do not satisfy a child support obligation.  Tuma v. Tuma, 389 N.W.2d 529, 531 (Minn. App. 1986).  It was improper for the district court here to deny appellant retroactive child support on the basis that respondent had been providing N.J.B. with some of his “general expenses.”  This logic can only be inappropriately gender based.  Time after time, trial and appellate courts have rejected the argument of male obligors that they are exempt or partially exempt from a child support order because, on their own, they take their minor children to movies, entertainment, ballgames, and pay for purchases out of their own pockets.  See id.

We note the district court based its conclusion on equitable considerations.  Although equitable considerations are not error, appellant here was entitled to equity.  By ordering respondent’s child support obligation to commence on October 1, 2002, rather than June 1, 2001, respondent was relieved of paying $7995.68 in retroactive child support.  Yet the district court declined to give appellant any consideration in computing child support obligations for the period during which N.J.B. was living with appellant (and appellant was basically the primary support) before appellant moved for a change of custody.  Consequently, we reverse the district court’s order commencing respondent’s child support obligation on October 1, 2002, and remand for an equitable determination with respect to respondent’s retroactive child support obligation.

III.       Sequestration

Finally, appellant argues that the district court abused its discretion by declining to release his sequestered funds.  Minn. Stat. § 518.24 (2002) provides that:

In all cases when maintenance or support payments are ordered, the court may require sufficient security to be given for the payment of them according to the terms of the order. Upon neglect or refusal to give security, or upon failure to pay the maintenance or support, the court may sequester the obligor's personal estate and the rents and profits of real estate of the obligor, and appoint a receiver of them.

 

A decision to sequester funds is within the district court’s discretion.  See Peterson v. Peterson, 304 Minn. 578, 580-81, 231 N.W.2d 85, 87 (1975) (holding that the district court’s sequestration of savings account balance to insure future maintenance payments was within district court’s discretion).    

            Here, the total amount of funds sequestered by the district court equaled $9,424.67.  We note that the decision to sequester funds is discretionary, and therefore the decision may not be erroneous.  See id.  But based on our conclusion to reverse and remand the district court’s order with respect to the amount of arrearages owed by appellant and respondent’s retroactive child support obligation, we reverse the district court’s decision to sequester the full $9,424.67.  On remand, the district court is instructed to consider what is a fair amount, if any, to sequester for the protection of appellant’s child support obligation, which, at best, has only a few months to run.

Reversed and remanded.



[1]  Appellant and respondent are also the parents of a third child who was no longer a minor at the time of the dissolution proceeding.