This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota Regarding the Parties:


Michelle M. Schaefer, petitioner,





Daniel H. Schaefer,



Filed July 12, 2005


Dietzen, Judge


Ramsey County District Court

File No. F2-99-1028


Martha A. Ballou, Brian R. Huffman, Ballou Law Office, 100 North Sixth Street, Suite 665B, Minneapolis, MN 55403 (for appellant)


Janet L. Goehle, Spruce Tree Center, Suite 510, 1600 University Avenue West, St. Paul, MN 55104-3829 (for respondent)


Patrick M. West-Hest, 415 Ramsey County Government Center, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for intervenor)


            Considered and decided by Hudson, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N


            In this post-dissolution proceeding, appellant-mother challenges the October 2004 order of a child support magistrate (CSM), which granted, in part, appellant’s motion to increase respondent’s child-support obligation; but denied her requests to make the increase retroactive to May 2004, include respondent-husband’s excess employment as a portion of his net income, require respondent to pay for one-half of the children’s medical insurance, and award attorney fees.  Because the issue of respondent’s excess employment had already been litigated in 2000, and the circumstances of his excess employment had not changed, we conclude that the CSM correctly determined in 2004 that the issue was precluded from further litigation.  Since the CSM did not abuse her discretion in her determination of the other issues, we affirm.      


Appellant Michelle M. Schaeffer and respondent Daniel H. Schaeffer were married on June 26, 1993.  On April 7, 2000, the district court approved the family-court referee’s findings of fact, conclusions of law, order for judgment and judgment and decree (Judgment) dissolving the parties’ marriage, determining custody arrangements for the parties’ children, and distributing the parties’ property.  Due to lack of evidence, the Judgment reserved the issue of respondent’s income for purposes of determining child support due to a lack of evidence.  The Judgment ordered that respondent continue to pay child support and daycare costs as earlier ordered until respondent’s income was resolved.  Appellant was ordered to maintain medical insurance and the parties were ordered to split all uncovered medical expenses and insurance co-pays.  Subsequently, the issue of the respondent’s income was resolved. 

On July 14, 2000, the district court issued an order amending the judgment (Amended Judgment) approving the referee’s amended order which resolved the issue of respondent’s income.  The Amended Judgment concluded that after appellant filed her petition for dissolution, respondent began earning income from voluntary overtime employment.  Respondent earned the overtime income by installing windows, doors, and other items; he was paid per completed installation.  The Amended Judgment stated, “Respondent’s excess employment is in the nature of additional, part-time or overtime employment compensable by the hour or fraction of an hour[.]”  Because the Amended Judgment determined that respondent’s overtime income was earned by his voluntary excess employment, it was not included when calculating respondent’s child-support obligation.  The Amended Judgment concluded that respondent’s gross annual salary was $36,300; his net monthly income was $2,181.59; and appellant’s net monthly income was $1,764.55.  The Amended Judgment ordered respondent to pay $654.47 per month to appellant for child support and an additional $352 per month for child care. 

On April 30, 2004, appellant moved to increase respondent’s child-support obligation, to require him to pay one-half of the children’s insurance, to find him in arrears on payment of non-insured medical and dental costs, and to order him to pay one-half of the children’s daycare expenses for the summer of 2004.  The basis of the motion was that there had been a material change in circumstances since the initial order.  

Appellant argued that respondent’s prior overtime income changed to “labor” income that should be included in respondent’s net income. In support of her argument, appellant introduced documents from the Department of Economic Security showing that in 2004 respondent did not earn any income from “overtime” work.   To refute appellant’s claims, respondent introduced his paystubs from 2000 and 2004 and letters from his employer explaining that respondent’s “labor” work was voluntary and completed outside of and in addition to his regular work hours.  The CSM determined that respondent was “employed by the same company for which he had been employed at the times of the prior orders; the compensation structure, as it relates to excess employment, is the same as it was at the times of the prior orders.”  Thus, the CSM concluded that respondent’s excess employment income in 2004 had not changed and therefore, should not constitute part of his net income for purposes of child support; the issue was precluded from further litigation because it had already been litigated. 

Appellant argued that respondent was paid bonus income that should be included in his net income for the purpose of determining his child-support obligation.  Respondent conceded that issue.  Consequently, the CSM determined that respondent’s net monthly income increased from $2,181.59 in 2000 to $3,393 in 2004.  Also, the CSM concluded that appellant’s net monthly income increased from $1,764.55 in 2000 to $2,499 in 2004, and her monthly expenses, not including work-related child-care costs, totaled $3,357.  As a result, the CSM found there had been a substantial change in circumstances and increased respondent’s child-support obligation to $1,017 per month.  Appellant was ordered to continue paying for the children’s insurance.  Because appellant had not yet enrolled the children in the summer child-care program, the CSM reserved the issue of child-care expenses.  The CSM also denied each party’s motion for attorney fees.  This appeal followed.



The first issue is whether the CSM erred in determining that respondent’s excess employment income was barred from consideration by res judicata and collateral estoppel because it had been determined previously in the Amended Judgment.  Appellant argues that respondent’s “labor” income is no longer excess employment income so the CSM erred in 2004 by determining that the issue of respondent’s excess employment income was precluded from litigation.

On appeal from the ruling of a CSM, we apply the same standard of review we would apply if the decision had been made by a district court.  Ludwigson v. Ludwigson, 642 N.W.2d 441, 445-46 (Minn. App. 2002).  We review de novo whether the doctrines of res judicata and collateral estoppel apply to a specific set of facts.  G.A.W., III v. D.M.W., 596 N.W.2d 284, 287 (Minn. App. 1999), review denied (Minn. Sept. 28, 1999).

Minnesota courts have long held that child support orders are not the traditional ‘final judgments’ that these doctrines [of res judicata and collateral estoppel] were intended to protect.”  State ex rel. Jarvela v. Burke, 678 N.W.2d 68, 73 (Minn. App. 2004), review denied (Minn. Jul. 20, 2004).  “In the practice of family law, . . . modifications of judgments on the basis of changed circumstances are sui generis” and remain under the court’s jurisdiction for virtually the entire lives of the parties.  Angelos v. Angelos, 367 N.W.2d 518, 519 (Minn. 1985).  The Minnesota legislature has specifically authorized the modification of support orders in cases where circumstances have changed substantially.  Minn. Stat. § 518.64 (2004).  But the underlying principles of res judicata and collateral estoppel, that the adjudication of an issue on the merits is conclusive and should not be relitigated, may be applied to family law cases in some circumstances.  Loo v. Loo, 520 N.W.2d 740, 743-44 (Minn. 1994).

Here, the issue of excluding respondent’s excess employment income from his net income for the purpose of determining child support was previously litigated and resolved in the Amended Judgment.  Appellant argues that respondent’s compensation has changed from overtime income to “labor” income.  But in the 2004 order, the CSM relied on evidence from the employer that respondent’s excess employment income has not changed; that is, it has always been voluntary excess “labor” income.  We conclude that the CSM did not err in concluding that this issue was previously litigated and resolved in the Amended Judgment.

Moreover, even if review were not barred by collateral estoppel, the record supports the decision of the CSM.  Essentially, appellant makes two arguments.  First, appellant argues that “labor” income is not excludable under Minn. Stat. § 518.64, subd. 2(c)(2) (2004), because it is not overtime income.  We disagree.  The statute clearly states that income a party earns for “employment in excess of a 40-hour work week” should not be included in the party’s net income for purposes of calculating the party’s child-support obligation if “the excess employment is in the nature of additional, part-time employment, or overtime employment compensable by the hour or fractions of an hour.”  Minn. Stat. § 518.64, subd. 2(c)(2) (iii) (emphasis added).  Respondent provided evidence that his “labor” employment is voluntary, completed outside of work hours, and performed in addition to, but not as part of, his regular work duties.  Although he is not paid by the hour or fraction of the hour, he is paid for each installation he completes.  Because respondent’s 2004 “labor” employment is “in the nature” of overtime employment, we conclude that the income meets the description set forth in the statute.

Second, appellant argues that because the Department of Economic Security’s records show respondent earned no income for overtime work in 2004, respondent did not earn any excess employment income.  But the title given in the records is not dispositive of whether the income was excess employment income for child-support purposes.  The paystubs and letters from respondent’s employer are more specific than the Department of Economic Security’s records and explain the nature of the “labor” income.  The CSM weighed the evidence and concluded that the paystubs and letters from respondent’s employer were more persuasive.  Because the record supports the CSM’s determination, we conclude the CSM did not abuse her discretion.


Appellant argues that the increase in support awarded by the CSM should be applied retroactively to May 1, 2004, the first day of the month following the filing of her motion.  The CSM may order retroactive modification of support to the date the petitioner served notice of the motion for modification.  Minn. Stat. § 518.64, subd. 2(d).  The CSM has discretion in setting the effective date of modification.  Kemp v. Kemp, 608 N.W.2d 916, 920 (Minn. App. 2000); Borcherding v. Borcherding, 566 N.W.2d 90, 93 (Minn. App. 1997); see Minn. Stat. § 645.44, subd. 15 (2004) (stating “[m]ay is permissive”).

The CSM ordered an increase in respondent’s child-support obligation retroactive to September 1, 2004, which date was after appellant served respondent with her notice of the motion for modification.  Because the record supports the CSM’s decision, we conclude there was no abuse of discretion.


            Appellant contends the CSM erred in ordering her to continue paying all of the premiums on the children’s health and dental insurance.  Appellant asserts that respondent should be responsible for a portion of the insurance costs because the cost of the insurance premiums has increased since 2000.[1] 

The CSM has broad discretion in proceedings to modify child-support orders.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).  We will reverse a child support modification order only if the order is an abuse of discretion and reaches a clearly erroneous conclusion, defying logic and fact.  Id.   Appellant gives no reason why the CSM’s decision is an abuse of discretion.  Because there is sufficient evidence in the record to support the CSM’s decision, we conclude the CSM did not abuse her discretion.


            Both parties argue that the CSM erred in failing to order the other party to pay attorney fees.  The decision to award attorney fees in conjunction with a motion to modify support is governed by Minn. Stat. § 518.14 (2004).  Minn. Stat. § 518.64, subd. 2(g).  A CSM shall award need-based attorney fees if the CSM finds:

(1) that the fees are necessary for the good-faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;


(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and


(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.


Minn. Stat. § 518.14, subd. 1.  The CSM may also award fees “against a party who unreasonably contributes to the length or expense of the proceeding.”  Id.  The decision to award fees under Minn. Stat. § 518.14, subd. 1, rests within the discretion of the CSM and will not be disturbed unless there is a clear abuse of discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).

The CSM reviewed the statute and record and concluded that neither party was entitled to fees.  There is no evidence that either party did not have the means to pay attorney fees or that either party acted in bad faith.  Therefore, we conclude the CSM did not abuse her discretion.

Appellant also claims that the original 2000 order requires respondent to pay her attorney fees because respondent failed to comply with the terms of that order.  The original 2000 order states:

            If either party fails to comply with any terms, or defaults in the performance of any obligation, for which that party finds it necessary to institute legal proceedings to compel compliance or performance, the defaulting party shall pay the innocent party’s attorney’s fees, costs, disbursements and expenses reasonably necessary to enforce the terms of the Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree.


Appellant did not institute proceedings in 2004 to compel respondent’s compliance with the terms of the 2000 order.  Appellant instead instituted these proceedings to seek a modification of the amended 2000 order.  Thus, the original 2000 order does not entitle appellant to attorney fees.


[1] Appellant also asserts that the CSM failed to rule on this issue.  But the CSM did rule on this issue; the 2004 order states, “The Obligee’s motion to request the Obligor’s contribution to dependent medical premium is DENIED.”