This opinion will be unpublished and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

A03-2055

 

In re the Marriage of:

Diane I. Bell, petitioner,

Respondent,

 

vs.

 

James M. Bell,

Appellant.

 

Filed July 13, 2004

Affirmed in part, reversed in part, and remanded

Hudson, Judge

 

Ramsey County District Court

File No. DM-F3-89-30472

 

Mary Catherine Lauhead, 3985 Clover Avenue, St. Paul, Minnesota 55127-7015 (for respondent)

 

Jonathan K. Askvig, John F. Gilsdorf, Gilsdorf & Askvig, 1712 US Bank Center, 101 East Fifth Street, St. Paul, Minnesota 55101 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Hudson, Judge; and Crippen, Judge.*


U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Appellant James Bell challenges the district court’s refusal to apply the child-support cap found in Minn. Stat. § 518.551, subd. 5(b) (1990-2002), when calculating his child-support arrearages.  Appellant also challenges the district court’s decision to convert all outstanding attorney-fee awards against appellant into additional child support.  Because the time for appellant to properly challenge the child-support amount set out in the dissolution decree has passed, we affirm in part.  But because the district court abused its discretion by converting the fee awards to child support, we reverse in part and remand to the district court.

FACTS

Appellant James Bell and respondent Diane Bell divorced in 1991.  At the time, the parties had two minor children.  Throughout the dissolution proceedings, appellant failed to comply with discovery requests and orders to produce accurate information about his income, in particular whether appellant was entitled to bonuses or commissions as he had been in previous, similar jobs.  Because of this failure, the district court determined that if appellant had income from bonuses or commissions that had not been disclosed to the court, respondent and the parties’ children should share in those amounts.  Accordingly, the dissolution decree ordered appellant to pay $1,200 per month as child support, plus 30% of any “unsalaried” income.  Appellant did not appear at the dissolution hearing, and judgment was entered by default.  Respondent was awarded $5,000 in attorney fees.  Appellant did not appeal or otherwise challenge the decree.

            In 1995, appellant filed a motion to modify his child support, arguing that there had been a significant decrease in his income that rendered the original award unreasonable and unfair.  He asked the district court to reduce his obligation and to delete any reference to his unsalaried or excess income, as he had no such income, and therefore the award was unfair.  After contested discovery, the district court found that appellant’s claims regarding his income were not credible and that he had again failed to sufficiently respond to requests for his financial information.  The district court ordered appellant to pay respondent $70,801.14 in child-support and maintenance arrearages, in addition to any amounts he might owe under the “percentage formulas” from his excess income.  Appellant was again ordered to provide full information on his commission and bonus income from May 1991 through 1995.  Finally, the district court awarded respondent $3,500 for attorney fees.

            In 2002, appellant again moved to modify his child support, based on the fact that the parties’ older child had turned 18 and the younger child was residing full-time with appellant in Lima, Peru.  Respondent filed a countermotion requesting that appellant’s child support obligation be continued until all arrearages were satisfied and that appellant be ordered to pay the two previous attorney-fee awards, which he had not done.  Respondent again requested that appellant make full disclosure of his financial records dating back to 1991 and that Ramsey County perform an audit to determine exactly how much appellant owed in arrearages.  During this process, appellant submitted a memorandum of law to the district court, arguing that the district court never made sufficient findings to justify awarding child support based on income in excess of the “cap” in Minn. Stat. § 518.551, subd. 5(b) (2002).  Because the base amount of child support awarded in 1991 was $1,200, the maximum guidelines obligation at the time, the district court had to make specific findings in order to properly award the additional 30% of appellant’s unsalaried income.  Because the district court had not done so, appellant argued that any arrearages must be calculated so as not to exceed the statutory maximum for any year.  Respondent objected to this argument and asked the district court to convert the unpaid attorney fee awards into additional child support, to protect those awards in the event that appellant files for bankruptcy.

            The district court ultimately entered judgment against appellant in the amount of $180,862.78, reflecting child-support and maintenance arrearages, unpaid attorney-fee awards, and unpaid medical-support obligations.  The district court explained that it would not retroactively apply the statutory cap to appellant’s child-support obligation because the time to appeal the 1991 decree, which first set the formula that exceeded the cap, had long since expired.  Respondent was awarded an additional $5,000 in attorney fees, and all attorney-fee awards were converted into additional child support.  This appeal follows.

D E C I S I O N

I

            Appellant argues that the district court abused its discretion by refusing to apply the statutory cap on child support found in Minn. Stat. § 518.551, subd. 5(b) (1990-2002), when calculating his child-support arrearages.  The setting and modification of child support is a matter left to the discretion of the district court, and this court will not reverse a decision absent an abuse of that discretion.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).  Generally, child support is set according to the statutory guidelines in Minn. Stat. § 518.551, subd. 5(b).  If the child-support obligation actually imposed is consistent with the guidelines, the court need only make findings on the amount of the obligor’s income used as the basis for the calculation and any other significant factors.  Minn. Stat. § 518.551, subd. 5(i).  But if the district court chooses to deviate from the guidelines, it must make more extensive findings, detailing the factors that justify such a deviation and how it serves the best interests of the child.  Id.

            Here, the 1991 dissolution decree set child support at a level higher than the guidelines amount.  Appellant is correct that the findings in the decree are insufficient to support a deviation from the statute.  The district court in 1991 offered little explanation for its decision to set child support at the statutory maximum (then $1,200 for two children) and add on 30% of appellant’s “unsalaried income.”  But the time for appealing or otherwise challenging the decree has long since expired.  “Even though the decision of the trial court in the first order may have been wrong, if it is an appealable order it is still final after the time for appeal has expired.”  Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966). 

            Appellant suggested during oral argument that he is not challenging the original decree but insisted that any arrearages must be calculated so as not to exceed the statutory cap in any given year.  This argument is not persuasive.  As explained earlier, the 1991 decree ordered appellant’s child-support obligation to include a base amount, plus 30% of appellant’s income from commissions and bonuses.  The decree does not place any qualifications or limitations on that order.  The original order allows for the possibility that the percentage formula will cause child support to exceed the guidelines amount.  Because appellant did not timely challenge the 1991 decree, he cannot now launch a collateral attack on the manner in which that decree calculates child support.  Accordingly, we affirm the district court’s refusal to apply the statutory cap when determining the amount of appellant’s child-support arrearages.

II

            Appellant also challenges the district court’s conversion of all outstanding attorney-fee awards to respondent into an additional child-support obligation.

            Under Minn. Stat. § 518.14, subd. 2(e) (2002), if attorney fees are awarded to a party seeking to enforce a child-support judgment, those fees may be converted to an additional award of child support.  But the party seeking attorney fees must provide notice, by certified or registered mail, that the party intends to ask for a conversion to child support and must provide the obligor with 20 days in which to request a hearing on the matter.  Minn. Stat. § 518.14, subd. 2(c) (2002). 

            Here, the district court converted three attorney-fee awards into child support: a $5,000 award from 1991, a $3,500 award from 1996, and a new $5,000 award from the 2002-03 proceedings.  The record reflects that respondent requested this conversion, but it is not clear that respondent filed a formal motion.  What is certain from the record is that although the district court made appellant aware of respondent’s request, respondent did not provide appellant with the formal notice required by the statute. 

            Even if the notice provided to appellant were sufficient, it is not clear that the district court had the authority to convert the 1991 and 1996 fee awards in 2003.  Having reviewed the record, we understand the district court’s concern that appellant would file for bankruptcy (as he had done in the past) and attempt to avoid paying the attorney-fee awards against him.  Appellant’s conduct throughout the 13-plus years since dissolution has been less than admirable, and we are sympathetic to respondent’s arguments.  But respondent did not provide appellant with formal notice of her request to convert all attorney-fee awards into child support, and there is no legal support for the retroactive conversion of the 1991 and 1996 awards.  We must therefore reverse the conversion and remand for the district court to amend its order to reflect this decision. 

Affirmed in part, reversed in part, and remanded.

 



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