This opinion will be unpublished and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

A03-1103

 

Judy I. Larsen, petitioner,

Respondent,

 

vs.

 

James C. Larsen,

Appellant.

 

Filed June 29, 2004

Affirmed in part and reversed in part

Halbrooks, Judge

 

 

Kandiyohi County District Court

File No. F4-03-745

 

Judy I. Larsen, P.O. Box 851, New London, MN 56273 (pro se respondent)

 

LeeAnn Clayton, Clayton Law Office, P.O. Box 113, Spicer, MN 56288 (for appellant)

(for appellant)

 

 

            Considered and decided by Harten, Presiding Judge, Halbrooks, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Appellant James C. Larsen challenges the district court order requiring that he pay respondent Judy Larsen retroactive and ongoing child support, arguing that (1) the child-support magistrate (CSM) lacked jurisdiction over the matter; (2) the CSM’s award of retroactive support to respondent lacked a proper statutory basis; and (3) the award of ongoing support was not supported by the CSM’s findings.  We affirm in part and reverse in part.

FACTS

In April 2002, the parties dissolved their marriage pursuant to a stipulated judgment and decree that awarded them joint legal and physical custody of N.L., born in 1987.  Appellant is N.L.’s biological father.  N.L.’s biological mother died in 1991, and it is undisputed that N.L. considers respondent to be his mother.  The decree provided that appellant would furnish N.L.’s primary residence subject to several exceptions, including that should respondent “find a reasonably priced apartment in Spicer,” N.L. would live primarily with respondent.

At all times relevant to this appeal, N.L. has been entitled to $420 monthly Retirement, Survivors and Disability (RSDI) social security benefits based on his deceased biological mother’s earnings. 

            Although the term “child support” is not used in the portions of the decree excerpted in the CSM’s order, the order states that the “only provisions in the [decree dealing] with financial obligations” are the provisions (1) allocating N.L.’s monthly RSDI benefits to the parties to reflect the amount of time N.L. resided with each party, with respondent receiving $100 and appellant receiving $320 each month; (2) requiring appellant to “provide all other expenses of [N.L.]” except driver’s training education; and (3) allowing appellant to claim N.L. as a dependent for the purposes of tax exemption.  The decree further provided that the parties’ financial obligations with respect to N.L. “shall be revised” should N.L. change his primary place of residence.

In July 2002, respondent relocated to New London, next to Spicer.  Since that time, N.L. has lived continuously with respondent and attended school in the New London-Spicer school district, subject to visitation with appellant.  Respondent subsequently applied to Kandiyohi County (county) for non-public-assistance child-support enforcement services pursuant to Title IV-D of the Social Security Act, 42 U.S.C. § 654(4) (2002).  The county determined that the matter was a “IV-D case” as defined by Minn. Stat. § 518.54, subd. 14 (2002), and was therefore suitable for submission to a CSM pursuant to the “expedited child support hearing process” described in Minn. Stat. § 484.702 (2002).  

The county intervened and in April 2003 brought an action on respondent’s behalf to establish ongoing child support and medical insurance pursuant to Minn. Stat. § 256.87, subd. 5 (2002), and to reimburse respondent for child-support expenses incurred in the ten months since July 2002, when N.L. began living with respondent full-time.

            Both parties submitted financial statements and testified before the CSM.  The CSM found that because the April 2002 decree awarded the parties joint physical custody of N.L., it was appropriate to apply the Hortis/Valento formula to determine the parties’ respective child-support obligations.  The CSM concluded that (1) it had jurisdiction over this matter pursuant to Minn. Stat. § 484.702, subds. 1, 3 (establishing procedure for Title IV-D cases); (2) the substantial change in the parties’ and N.L.’s living arrangements warranted revisiting the parties’ financial obligations concerning N.L., as contemplated in the decree; (3) appellant’s ongoing monthly child-support obligation, based on his net monthly income and application of the Hortis-Valento formula, is $332; (4) appellant must reimburse respondent for $2,320 child support not paid between July 2002 and April 2003; and (5) appellant must obtain dependent medical and dental insurance through his employer for N.L.  This appeal follows.

D E C I S I O N

Because appellant appeals directly from the CSM’s order without first moving for review of that order under Minn. R. Gen. Pract. 376.01, our scope of review is limited to determining whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law and the judgment.  Minn. R. Gen. Pract. 378.01; Davis v. Davis, 631 N.W.2d 822, 825 (Minn. App. 2001). 

[W]hen reviewing a child support magistrate’s order in an expedited child support process proceeding, we will apply the same standard of review that we would apply to the order if it had been issued by a district court judge in a proceeding conducted outside the expedited child support process.

 

Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000).  The district court has broad discretion to determine child support, and we will affirm that determination unless it is clearly erroneous or against logic and the facts on the record.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002). 

I.

            Appellant argues that the CSM erred by determining that the CSM had jurisdiction to modify his support obligation pursuant to Minn. Stat. § 484.702 (2002), which directs the supreme court to create an expedited child-support hearing process for modification of child-support orders in IV-D cases and grants the chief judge of each judicial district authority to appoint CSM’s to preside over such expedited hearings.  The existence of subject-matter jurisdiction is a legal question, which appellate courts review de novo.  Odenthal v. Minn. Conference of Seventh-Day Adventists, 649 N.W.2d 426, 434 (Minn. 2002); see Ludwigson v. Ludwigson, 642 N.W.2d 441, 448 (Minn. App. 2002) (reciting this rule in context of expedited child-support process).

Appellant contends that although section 484.702 “confers concurrent jurisdiction on a [CSM] when a motion to modify custody is pending in district court, it does not give the [CSM] authority to decide custody matters.”  In support, appellant cites to Minn. Stat. § 484.702, subd. 1(c), which provides:

This section does not prevent a party, upon timely notice to the public authority, from commencing an action or bringing a motion in district court for the establishment, modification, or enforcement of support, or enforcement of maintenance orders if combined with a support proceeding, where additional issues involving domestic abuse, establishment or modification of custody or visitation, or property issues exist as noticed by the complaint, motion, counter motion, or counter action.

 

Appellant’s argument is imprecise, in that neither the subdivision he cites nor any other provision of section 484.702 supports the proposition that a CSM only has jurisdiction to modify support in an expedited proceeding where there is an underlying proceeding to modify custody pending in the district court.  Subdivision 1(c) merely provides that the statutory creation of CSMs to preside over expedited child-support hearings does not deprive the district court of jurisdiction to preside over such hearings where issues involving modification of custody are already before the district court.  The statute does not require that motions to establish or modify custody be pending before the district court in order for the CSM to exercise jurisdiction; nor does the statute state that the CSM’s jurisdiction over expedited child-support hearings derives from, depends on, or is necessarily concurrent with the district court’s jurisdiction over an underlying motion to modify custody.

            Minn. Stat. § 484.702, subd. 1(b), provides that “[a]ll proceedings establishing, modifying, or enforcing support orders . . . must be conducted in the expedited process if the case is a IV-D case.”  Subdivision 3 provides for the appointment of child-support magistrates to preside over expedited IV-D cases.  Here, respondent applied for child-support enforcement services under Title IV-D of the Social Security Act, the county determined that the matter was a IV-D case as defined by Minn. Stat. § 518.54, subd. 14 (2002), and it is undisputed that a IV-D file was open in the matter at the time of the hearing and the CSM’s order.  The CSM properly exercised jurisdiction over this matter.   

II.

 

Appellant next challenges the retroactive award of child support.  The CSM ordered that appellant pay respondent $2,320 in child support for the period between July 2002 – when N.L. began living with respondent full-time – and April 2003 – the date of the county’s action.  The CSM stated that the statutory basis for ordering the past support was Minn. Stat. § 256.87, subd. 5, which provides:

A person or entity having physical custody of a dependent child not receiving public assistance . . . has a cause of action for child support against the child’s noncustodial parents. Upon a motion served on the noncustodial parent, the court shall order child support payments, including medical support and child care support, from the noncustodial parent under chapter 518.  A noncustodial parent’s liability may include up to the two years immediately preceding the commencement of the action.  This subdivision applies only if the person or entity has physical custody with the consent of a custodial parent or approval of the court.

 

The CSM found that respondent had a valid claim for retroactive support because she had custody of N.L. with appellant’s consent at the time of the hearing. 

Appellant argues that the CSM erred in ordering retroactive support because the statute only authorizes a cause of action for child support against the child’s noncustodial parents, and here, both parties are still custodial parents by the terms of the unmodified April 2002 decree.  We agree on the ground that Minn. Stat. § 256.87, subd. 5, simply does not contemplate an award of retroactive child support to one parent in circumstances where the parents shared joint physical custody during the period for which retroactive support is sought.  On the record before us, we are unable to reconcile the CSM’s application of the Hortis/Valento formula, which is applied in joint-custody situations, with the CSM’s reliance upon Minn. Stat. § 256.87, subd. 5, which applies exclusively to situations in which one parent has sole physical custody.  Because the CSM explicitly and exclusively relied upon Minn. Stat. § 256.87, subd. 5, in awarding the retroactive child support, we conclude that the award was erroneous and must be reversed.

            Nor does it appear that the retroactive modification would have been warranted under Minn. Stat. § 518.64, subd. 2(d) (2002), which provides that a child-support order may be modified to a date before service of the notice of motion for modification if the court expressly finds that “the party seeking modification was a recipient of . . . public assistance based upon need during the period for which retroactive modification is sought.”  The child-support officer who testified at the hearing repeatedly stated that this case does not involve public assistance, and the RSDI benefits received by N.L. are not listed as a form of “public assistance” in the child-support provision of the Human Services Act, Minn. Stat. § 256.741, subd. 1(b) (2002).

III.

Appellant argues that the CSM abused her discretion in ordering ongoing child support without considering the requisite statutory factors.  Generally, a party seeking modification of a child-support order must show a substantial change in circumstances that renders the existing support obligation unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a) (2002); Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996).  But if child support is reserved in the dissolution decree, the court may later establish support without a showing of changed circumstances.  Mulroy v. Mulroy, 354 N.W.2d 66, 69 (Minn. App. 1984).  A “subsequent establishment of a support obligation is treated as an initial matter rather than a modification of a prior support order.”  Anderson v. Anderson, 470 N.W.2d 719, 721 (Minn. App. 1991).  Decree language expressly reserving child support indicates the parties’ obvious intention to examine the issue at a later time.  Bennyhoff v. Bennyhoff, 406 N.W.2d 92, 94 (Minn. App. 1987).

Because appellant did not include the entire decree in the record, it is impossible to know with certainty whether the decree contained language expressly reserving child support.  But whether or not the CSM chose to treat the county’s motion as an initial matter, rather than a modification of a prior support order, the CSM was still required, by Minn. Stat. § 518.64, subd. 2(c)(1), to consider the factors listed in Minn. Stat. § 518.551, subd. 5 (2002), when considering the motion.  These factors include “all earnings, income, and resources of the parents, including real and personal property” and “the financial needs and resources, physical and emotional condition, and educational needs of the child . . . to be supported.”  Minn. Stat. § 518.551, subd. 5(c). 

Appellant does not challenge the CSM’s decision to determine the propriety of support by applying the factors set forth in Minn. Stat. § 518.551, subd. 5(c), but argues that the CSM failed to make adequate statutory findings concerning (1) N.L.’s receipt of monthly RSDI benefits and the impact those benefits have on respondent’s resources and need for support; (2) N.L.’s needs; and (3) the fact that respondent’s receipt of both support and N.L.’s RSDI benefits constitutes an unfair “windfall” in light of the fact that appellant’s monthly expenses exceed his resources.

As to N.L.’s benefits, the CSM’s order specifically states that N.L. receives the benefits.  As to N.L.’s needs, appellant acknowledges that they are described in detail in respondent’s financial statement filed with the CSM, but argues that they are exaggerated, speculative, or otherwise imprecise.  Appellant objects to the substance, not the sufficiency, of those findings, which are issues of fact that are reasonably supported by the record.  As to appellant’s argument that N.L.’s benefits bestow a windfall on respondent, he cites no authority for the proposition that a child’s survivor benefits should be considered a part of the child’s parent’s income for the purposes of establishing child support.

Appellant acknowledges that in its order, the CSM stated that the decision to award respondent child support was made not only according to the needs and financial circumstances of the parties, but also “pursuant to Minn. Stat. § 518.551, subd. 5.”  The CSM is not required to make specific findings relating to each factor where the findings as a whole show that the CSM considered the relevant factors.  Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 362 (Minn. App. 1987), review denied (Minn. Oct. 28, 1987).  Here, the parties submitted detailed financial statements to the CSM and Hortis/Valento calculations were included in the order.  The CSM appears to have properly considered the factors mandated by the legislature in its decision to establish appellant’s child-support payments.  The CSM did not abuse its discretion by ordering support.

            Affirmed in part and reversed in part.