This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Ambaye Tina Tshefu,
Filed May 24, 2005
Robert H. Schumacher, Judge
Tracy I. Nightingale, 5775 Wayzata Boulevard, Suite 700, St. Louis Park, MN 55416 (for appellant)
Considered and decided by Hudson, Presiding Judge; Schumacher, Judge; and Poritsky, Judge.*
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
This is an appeal of a court order reinstating an original support order after temporary suspension due to medical disability. Appellant-mother Ambaye Tina Tshefu argues the district court erred in (1) "setting" her child support obligation at $491 per month, (2) directing her to pay 50% of unreimbursed medical and dental expenses, (3) denying her motion for need based attorney fees, and (4) denying her request to submit new evidence. We affirm.
The parties dissolved their marriage in December 1997 and were granted joint physical and legal custody of their three children, then ages 10, 7, and 4. The dissolution judgment ordered mother to pay $788 per month in child support and ordered that the parties equally share the children's unreimbursed medical and dental expenses.
In March 1998, mother filed a motion to suspend her child support obligation due to medical disability and inability to work. The record shows that at the time mother was hospitalized. The district court opened the dissolution judgment and ordered mother's child support obligation satisfied by the children's receipt of derivative Social Security disability benefits. Two years later, the county intervened and requested that the district court set mother's child support obligation. A magistrate found that mother was receiving wages from part-time employment in addition to her Social Security disability benefits, averaging a net monthly income of $1,344, and set support at $365 per month by order filed December 4, 2000.
In September 2003, mother filed a second motion to modify her child support, again citing medical disability and inability to work. In response, a magistrate suspended mother's support obligation and set a hearing for April 1, 2004, to review mother's income and ongoing support obligation.
Mother did not personally appear
at the April 2004 hearing. Respondent-father
Badibanga Joseph Kasongo appeared without representation, and mother's attorney
appeared on her behalf. Mother's
attorney explained that mother was traveling in the
also produced documentation of mother's medical disability. A long-term disability claim dated February
12, 2004, showed mother's last date of examination at
By order filed April 21, 2004, the magistrate denied mother's September 2003 motion to modify her child support obligation, reinstated the suspended obligation at $491 per month after amending the original order of $365 per month for cost of living adjustments, directed mother to pay 50% of unreimbursed medical and dental expenses, and denied mother's motion for need-based attorney fees. Mother filed a motion for review with the district court and requested the opportunity to submit new evidence. By order filed August 11, 2004, the district court affirmed the magistrate's April 2004 order and denied mother's request to submit new evidence.
1. When a magistrate's
decision is affirmed on a motion for review, that decision becomes the decision of the
district court. Kilpatrick v.
Kilpatrick, 673 N.W.2d 528, 530 n.2 (Minn. App. 2004). The district court has broad discretion in
determining whether to modify a child support order. Moylan v. Moylan, 384 N.W.2d 859, 864
Mother argues the district court "wrongfully set" her child support obligation at $491 per month without making findings necessary under the child support modification statute, Minn. Stat. § 518.64 (2004). Mother further argues the district court erred by "setting" support above the guideline amount. Mother misconstrues the issue.
Child support was
established at $365 per month in December 2000.
Three years later, in September 2003, mother moved to modify her support
obligation. After a temporary suspension
of her obligation due to medical disability, the district court ultimately
denied mother's modification motion and reinstated her obligation at $491 per
month, amending the previously set obligation of $365 for cost of living
Stat. § 518.64, subd. 2, the district court may modify child support
if the obligor shows a substantial decrease in earnings. Failure to show a substantial change
precludes modification. Tuthill v.
Tuthill, 399 N.W.2d 230, 232 (
Mother did not appear at the April 2004 hearing scheduled for consideration of her motion to modify her child support obligation. Counsel explained on mother's behalf that she was out of the country. Father noted that mother left the country on February 11, 2004. Mother's counsel stated that mother was no longer receiving wages or other benefits from her employer due to an ongoing medical disability. A long-term disability claim dated February 12, 2004, showed mother's last date of examination at the Center as December 8, 2003. This document stated that mother "should not return to work at this time." A letter from a nurse at the Center, written after mother allegedly left the country, stated that mother "continues to be seen at our clinic" and estimated that she "may be able to return to work in six months' time."
The district court's decision was based on mother's failure to show a continued inability to work due to disability. Although mother produced two documents regarding medical treatment at the Center, the district court was required to consider this evidence in light of mother's travel out of the country. On this record, mother failed to show a good-faith inability to pay. The district court did not abuse its discretion in denying mother's modification motion.
2. Mother argues the district court erred in directing her to
pay half of the children's unreimbursed medical and dental expenses because the
district court did not find she had the ability to pay. See Minn. Stat. § 518.171, subd. 1(c) (2004) (stating court shall hold
obligor liable if it finds unreimbursed expenses and financial ability
to contribute). Mother did not raise any
argument regarding unreimbursed medical and dental expenses in her modification
motion, at the April 2004 hearing, or in her notice for review to the district
court. We therefore decline to address
this issue. See Thiele v. Stich, 425 N.W.2d 580, 582 (
3. Mother challenges the district court's denial of her request
for attorney fees, contending she should have been awarded need-based attorney
fees under Minn. Stat. § 518.14, subd. 1 (2004). A district court shall award need-based
attorney fees if the fees are needed for a party's good faith assertion of
rights, the payor can pay the fees, and the recipient cannot.
The magistrate's order suspending mother's child support obligation found father's monthly living expenses of $3,140 exceeded his net monthly income of $2,556. Mother does not challenge this finding. Additionally, at the time the district court denied mother's request for need-based fees, the record showed that Social Security was attempting to recover $10,956 in overpayments from father due to mother's employment while the children received derivative disability benefits. On this record, the district court did not abuse its discretion in denying mother's motion due to father's inability to pay.
4. Mother argues the district court erred in denying her request
to submit new evidence regarding the children's receipt of derivative social
security benefits for consideration on her notice for review. The record before the district court on a
notice of review "shall be based upon the decision of the child support
magistrate . . . and any exhibits and affidavits filed,
and, where a transcript has not been filed, may be based upon all or part of
the audio or video recording of the hearing." Minn. R. Gen. Pract. 377.09, subd. 3. The parties "shall not submit any new evidence unless the child support magistrate or
district court judge, upon written or oral notice to all parties, requests
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.