This opinion will be unpublished and

may not be cited except as provided by

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






In re: John Michael Feist, III, petitioner,


Michele Ann Feist,


Filed December 14, 2004


Stoneburner, Judge


Dakota County District Court

File No. F79214279


John T. Burns, Jr., Burns Law Office, 115 Midway Bank Building, 14300 Nicollet Court, Burnsville, MN 55306 (for appellant)


JaPaul J. Harris, Southern Minnesota Regional Legal Services, Inc., Suite 200, 166 East Fourth Street, St. Paul, MN 55101-1448 (for respondent)


            Considered and decided by Schumacher, Presiding Judge; Stoneburner, Judge; and Parker, Judge.*



U N P U B L I S H E D  O P I N I O N




Appellant John Michael Feist, III, challenges denial of his motion to reduce child support and terminate his maintenance obligation.  Because the district court did not abuse its discretion by finding that appellant has failed to establish a change in circumstances that makes the current support and maintenance awards unreasonable and unfair, we affirm.



Appellant’s marriage to respondent Michele Ann Feist was terminated by a 1993 judgment based on a negotiated marital termination agreement (MTA).  Both parties were represented at the time of the dissolution.  Appellant agreed to pay $1,000 per month in child support until the youngest of the two children of the marriage “becomes 22, graduates from college, marries, or is otherwise emancipated, whichever event occurs first,” to maintain health and dental insurance for the children, to be responsible for co-payments over $10, to pay college tuition for four years for each child, and to pay $380 monthly maintenance until respondent dies, remarries, or until June 15, 2005, whichever occurs first.  Due to cost-of-living adjustments, appellant’s child support and maintenance obligation currently total $1,742.71 per month, not including the health insurance and tuition obligations.

In 2003, appellant moved to modify the judgment to terminate child support for each child when the child reaches age 18 and to terminate maintenance.[1]  The district court concluded that appellant has not demonstrated the requisite change of circumstances and denied the motions.  Appellant moved for an amended order, which the district court denied on procedural and substantive grounds.  This appeal followed.



I.                   Child support


            This court reviews a district court’s decision on a motion to modify child support under an abuse of discretion standard.  Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).  An abuse-of-discretion will be found if the district court resolved the matter in a manner that is “against logic and the facts on record.”  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002). 

                        Generally, a stipulation fixing the respective rights and obligations of the parties represents their voluntary acquiescence in an equitable settlement, and the district court should “carefully and only reluctantly” alter its terms.  See Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981) (discussing stipulated spousal maintenance).  But, the existence of a stipulation does not “bar later consideration of whether a change in circumstances warrants a modification.”  Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).  Where child support is concerned, Minnesota caselaw indicates that “[a]lthough a stipulation is one factor to be considered in modification motions, child support ‘relates to nonbargainable interests of children and is less subject to restraint by stipulation than are other dissolution matters.’”  Martin v. Martin, 401 N.W.2d 107, 110 (Minn. App. 1987) (quoting Maxson v. Derence, 384 N.W.2d 583, 585 (Minn. App. 1986)).


O’Donnell v. O’Donnell, 678 N.W.2d 471, 475 (Minn. App. 2004); cf. Skupas v. Skupas, No. C5-97-2190, 1998 WL 297514 at *1 (Minn. App. 1998) (noting that supreme court has not extended the same deference accorded to maintenance stipulations that directly impact the rights of children).  See Moylan v. Moylan, 384 N.W.2d 859, 865 (Minn. 1986) (admitting a stipulation is an “important element” in considering a party’s motion to modify stipulated support obligation, but holding stipulations addressing support are “afforded less weight” because they address the “non-bargainable interests” of the children).

The district court found that appellant agreed to support both children beyond the statutory age of majority in the negotiated MTA and rejected appellant’s argument that the agreement of the parties cannot support an order to support children beyond the statutory age of majority.  Although appellant did not base his claim of changed circumstances on decreased income, the district court sua sponte calculated appellant’s support obligation using the limited evidence presented regarding appellant’s current income.

The district court adopted respondent’s calculation of appellant’s current net income, based on two paystubs submitted by appellant, as $3,789 per month.  Guideline support for two children for this amount of income is $1,137.  The district court found that the $1,000-per-month child support ordered in the 1993 judgment, when appellant’s net income was $3,000 per month, was an upward deviation of approximately $100 from guidelines.  Due to cost-of-living increases, appellant’s child support obligation at the time of the motion was $1,282.00 per month. 

The district court concluded that the amount of appellant’s current support obligation is approximately the same upward deviation as negotiated by the parties at the time of the dissolution, therefore, appellant has not shown a change in circumstances that makes the current order unreasonable or unfair under Minn. Stat. § 518.64, subd. 2(b)(1) (2002) (establishing rebuttable presumption that changed circumstances make current support order unfair and unreasonable if application of guidelines to current income results in support that is at least 20% and at least $50 per month higher or lower than current support).

Appellant asserts that the district court’s conclusion is based on clearly erroneous factual findings and mistaken application of the law.  We first address appellant’s argument that modification of child support is required under Minn. Stat. § 518.64, subd. 4a (2002), which provides:

(a)        Unless a court order provides otherwise, a child support obligation in a specific amount per child terminates automatically and without any action by the obligor to reduce, modify, or terminate the order upon emancipation of the child as provided under section 518.54, subdivision 2.

(b)       A child support obligation for two or more children that is not a support obligation in a specific amount per child continues in the full amount until the emancipation of the last child for whose benefit the order was made, or until further order of the court.

(c)       The obligor may request a modification of the obligor’s child support order upon the emancipation of a child if there are still minor children under the order.  The child support obligation shall be determined based on the income of the parties at the time the modification is sought.


“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). 

Appellant’s oldest child, who turned 18 and graduated from high school before appellant brought his motion, is not a child under the statute, and appellant argues that he is entitled to have his child support obligation calculated for one, not two children.  Appellant argues that because a 1995 amendment to Minn. Stat. § 518.64, subd. 4 (1994), eliminated the preliminary phrase “unless otherwise agreed in writing . . .,” any provision in the judgment that was based on an agreement to extend the age of majority is void.  But appellant has provided no authority that the amendment is retroactive,[2] and ignores the fact that his obligation to pay beyond the statutory definition of emancipation is court ordered, as specified in the current statute.  See Minn. Stat. § 518.64, subd. 4a(a) (2002).

“It is well settled that in a stipulation, parties are free to bind themselves to obligations that a court could not impose.”  Gatfield v. Gatfield, 682 N.W.2d 632, 637 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004).  Appellant argues that the district court “effectively concludes that an agreement to pay child support beyond emancipation is not modifiable” and cites Tammen v. Tammen, 289 Minn. 28, 30, 182 N.W.2d 840, 841-42 (1970), and Miller v. Miller, 415 N.W.2d 920, 923 (Minn. App. 1987) for the proposition that a stipulation regarding child support is only one factor to be considered.  We agree that “the basic right of minor children to support by the parents may not be affected by any agreement between the parents” and that stipulations on child support merged into judgments “are not contracts which bind the court or preclude it from making such changes as the changes in circumstances justify.”  Tammen, 289 Minn. at 30, 182 N.W.2d at 842 (citation omitted).  But we also agree with the district court that appellant has not produced any evidence of a substantial change of circumstances that make his agreement to extend the age of majority unfair or unreasonable in this case. 

Appellant also argues that the district court’s calculation of his current net monthly income is clearly erroneous because it is based on a mathematical mistake in projecting income, includes overtime income contrary to Minn. Stat. § 518.551, subd. 5(b)(2) (2002), and grossly understates deductions from gross income.  But appellant did not argue a change of circumstances based on decreased income in the district court and provided only minimal income information to the district court.  This court will generally not decide issues not argued at the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Appellant requested a modification based on emancipation of the parties’ oldest daughter.  Though appellant’s affidavit in support of his motion requests that his obligation be recalculated using his current net income, he failed to produce evidence that the overtime wages shown on his pay stubs should not have been used in calculating his net monthly income.  See Minn. Stat. § 518.64, subd. 2(c)(2) (stating party seeking to exclude overtime wages for child support calculation has burden to demonstrate wages qualify for statutory exemption).  And appellant did not assert in the district court the specific errors in respondent’s calculation of his income that he has raised on appeal.  There is evidence in the record that supports the district court’s calculation of appellant’s net monthly income and we decline to consider evidence that was not before the district court or to adopt an interpretation of evidence that was not argued to the district court.  Minn. R. Civ. App. P. 110.01; Thiele, 425 N.W.2d at 582.

II.        Spousal Maintenance

This court will only reverse a district court’s decision on modification of spousal maintenance if the district court abused its discretion.  Rubenstein v. Rubenstein,295 Minn. 29, 32, 202 N.W.2d 662, 663-64 (1972).  A party moving to modify maintenance bears the burden to show there has been a substantial change in circumstances and that the current support order is unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2; Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).  Additionally, the district court must consider the same factors used to initially determine the maintenance obligation.  Minn. Stat. § 518.64, subd. 2(c).  If one of the conditions for modification has not been met, a finding on the other condition is not necessary.  See Borman v. Borman, 644 N.W.2d 478, 481 (Minn. App. 2002) (explaining that if a court cannot find a substantial change of circumstances, it need not address whether the existing award is unreasonable or unfair).

As noted above, a stipulation of the parties in family law matters is only reluctantly altered, and the stipulation can exceed the obligations that a district court would impose.  See Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981); Gatfield,682 N.W.2d at 637.  The district court considered the MTA in this case as one factor weighing against modification of maintenance.

Minn. Stat. § 518.64, subd. 2(a), provides guidelines for showing a substantial change of circumstances, such as substantially increased or decreased earnings of a party, or substantially increased or decreased need of a party.  Here, appellant asserted to the district court that respondent’s income had increased following the alleged receipt of a cosmetology license and argued that it would be unreasonable and unfair to continue the spousal maintenance obligation.  But appellant did not produce any evidence of respondent’s increased income.  Respondent’s attorney provided an affidavit stating that respondent’s income has not increased, and respondent also provided a similar affidavit following appellant’s motion to amend.  On appeal, appellant abandoned his assertion that respondent’s income has increased and argued for the first time that maintenance should be terminated based on his decreased income.  We decline to address this argument.  See Thiele,425 N.W.2d at 582 (stating party may not switch theories on appeal.)  The district court acted within its discretion, based on the evidence before it, in concluding that appellant failed to establish a substantial change of circumstances sufficient to modify his current maintenance obligation.


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

[1] Appellant also moved to cap his responsibility for college tuition and to increase respondent’s obligation on health and dental insurance copayments.  The district court granted the motion to cap tuition payments, and appellant has not appealed denial of his motion regarding insurance.

[2] This court has held that there is a presumption against the retroactive application of a statute.  Hadrava v. Hadrava, 357 N.W.2d 376, 379 (Minn. App. 1984).