This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1918

 

 

Badibanga Joseph Kasongo, petitioner,

Respondent,

 

vs.

 

Ambaye Tina Tshefu,

Appellant.

 

 

Filed May 24, 2005

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. DC209208

 

 

Badibanga Joseph Kasongo, 997 Whitney Drive, Apple Valley, MN 55124 (pro se respondent)

 

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.

FACTS

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 Congo and because of political unrest in that country could not return to Minnesota. Mother's counsel produced pay stubs showing mother's income for portions of August and September 2003 and January 2004 and stated that mother was no longer receiving any wages or benefits from her employer. Mother's counsel further stated that mother's only income was $697 per month from Social Security disability benefits and noted that mother receives some type of housing assistance but did not know the amount of assistance.

Mother's counsel 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 Hennepin County Mental Health Center (the Center) as December 8, 2003, and stated that mother "should not return to work at this time." A letter from a nurse at the Center, dated February 20, 2004, 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." Father argued the documents did not represent mother's current condition since mother left the country on February 11, 2004, and could not have been seen by treating physicians after that date.

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.

D E C I S I O N

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 (Minn. 1986). The district court should exercise its discretion "with great caution and only upon clear proof of facts showing that the circumstances of the parties are markedly different from those in which they were when the decree was rendered." Giencke v. Haglund, 364 N.W.2d 433, 435-36 (Minn. App. 1985) (quotation omitted). The district court's decision should not be reversed unless it reaches a "clearly erroneous conclusion that is against logic and the facts on record." Moylan, 384 N.W.2d at 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 adjustments. See Anderson v. Anderson, 421 N.W.2d 410, 412 (Minn. App. 1988) (explaining although modification of child support must proceed under Minn. Stat.  518.64, reinstatement of child support after temporary reduction does not constitute modification). The issue on appeal is not whether the district court "wrongfully set" mother's obligation but whether the district court abused its discretion in denying mother's motion to modify support.

Under Minn. 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 (Minn. App. 1987). "Even if the moving party demonstrates a substantial decrease in earnings, a trial court may deny the party's motion to reduce the child support obligation if the party unjustifiably self-limited his income." Anderson v. Anderson, 450 N.W.2d 384, 386 (Minn. App. 1990). The obligor has the burden of proving he or she made a good-faith effort to meet the child support obligation, but could not do so. Id.

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 (Minn. 1988) (stating this court will generally not consider matters not argued and considered in court below). We note the district court likely addressed the issue on its own initiative due to the requirements under Minn. Stat.  518.171, subd. 1(a)(1) (2004), which states every child support order must expressly assign or reserve the division of uninsured medical and dental costs.

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. Id. This court will not reverse an award of attorney fees absent an abuse of discretion. Bogen v. Bogen, 261 N.W.2d 606, 611 (Minn. 1977).

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 additional information." Id., subd. 4. The evidence mother asked to submit to the district court was not part of the record before the magistrate and was not requested by the district court. Under rule 377.09, the district court did not abuse its discretion by declining to consider mother's requested late submissions.

Affirmed.



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