This opinion will be unpublished and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
Wayne A. Hamlin,
Child Support Division,
Filed August 9, 2005
Mille Lacs County District Court
File No. C0-04-0237
Wayne A. Hamlin,
Janice S. Kolb, Mille Lacs County Attorney, Thomas C. Lopez, Christopher J. Zipko, Assistant County Attorneys, Courthouse Square, 525 Second Street Southeast, Milaca, MN 56353 (for respondent)
Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
Following trial in this action for damages against Mille Lacs County’s child-support division, the district court found that the county was immune from civil liability under Minn. Stat. § 466.03, subd. 5 (2004), because the county employee whose actions resulted in the attachment of Wayne and Lorelee Hamlin’s joint bank account had exercised due care and followed department procedure. In this appeal, Wayne Hamlin challenges the admissibility of three late-payment notices that were not included on the county’s list of exhibits and also challenges the district court’s findings on the county’s immunity. Because the admission of the exhibits was neither an abuse of discretion nor prejudicial and because the record supports the district court’s determination on due-care statutory immunity, we affirm.
F A C T S
This litigation stems from
One of the children moved from the father’s home, and, in June 2003, the county redirected $266 of the $319.20 monthly child-support obligation to the county’s foster-care unit. This divided allocation required setting up a new case file for the foster-care payment. The remaining $53.20 was still directed to the original case file and the existing payment plan with Robinson. A county child-support officer (CSO) informed Lorelee Hamlin in early July that, because of the divided allocation of payments, she was no longer in technical compliance with the terms of the payment plan on the Robinson account. The CSO testified that to remedy the problem she offered to set up a new payment agreement for $53.20, but Lorelee Hamlin did not want to sign a new agreement.
The technical noncompliance on the Robinson account prompted the county to discontinue its forebearance on the child-support arrearages. In September 2003 the county issued a notice of support judgment levy for $10,228.98. The county levied on two bank accounts that Lorelee Hamlin maintained jointly with her husband, Wayne Hamlin. Wayne Hamlin successfully contested the support judgment levy on the basis that the funds in the accounts derived solely from payroll checks from his employment and therefore were not subject to levy for Lorelee Hamlin’s child-support debt. The CSO rectified the allocation and accounting problem by implementing, with Lorelee Hamlin’s assent, two payment agreements that were applied retroactively to the support accounts.
D E C I S I O N
Determinations on the admissibility of
evidence are within the district court’s discretion and will not be reversed
absent an abuse of that discretion. Kroning v. State Farm Auto Ins. Co., 567
N.W.2d 42, 45-46 (
alleges that the district court improperly allowed the county to admit an
exhibit consisting of three notices of late child-support payments, which were
not disclosed to him before trial as required by the Minnesota Civil Trialbook
and the district court’s prior discovery order.
It is recommended practice in
Hamlin argues that he was prejudiced by the late disclosure of the county’s Exhibit 5, which consisted of three notices of late child-support payments that the county sent to Lorelee Hamlin. We are not persuaded that this exhibit affected the district court’s dispositive determination that the county was entitled to due-care immunity from Wayne Hamlin’s claim for damages. Even if the district court considered this exhibit in reaching the immunity determination, we conclude that no prejudice resulted because the exhibit was duplicative of another trial exhibit, which established the previous late payments.
Hamlin introduced into evidence the payment
agreement that Lorelee Hamlin signed in February 2003, which specifically
referred to child-support arrearages of $10,195.03. This payment agreement presented virtually
the same evidence of child-support arrearages as the earlier child-support
notices. Therefore, the earlier notices
were merely cumulative, and any error in admitting them was not
prejudicial. See W.G.D. v. Crandall, 640 N.W.2d 344, 349 (
Government immunity from tort liability is a
question of law, which we review de novo.
Kari v. City of
A municipality is generally subject to
liability for the torts of its officers and employees.
The words “due care” in Minn. Stat.
§ 466.03, subd. 5, impose a negligence standard of care in the application
of the statute. Boop v. City of Lino Lakes, 502 N.W.2d 409, 411 (Minn. App. 1993), review denied (Minn. Sept. 10,
1993). Thus, the issue of whether the
county exercised due care in the enforcement of the statute presents a question
of fact for resolution by the fact-finder.
Hamlin argues that the county failed to establish that the CSO acted with due care because the CSO negligently misallocated Lorelee Hamlin’s support payments among several payment-plan accounts, thus allowing child-support arrears to accumulate to the statutory threshold for levy on funds in a bank account. See Minn. Stat. § 552.06 (allowing summary execution of child-support judgment on funds at financial institution if “a judgment debtor . . . in arrears in court-ordered support payments in an amount equal to or greater than five times the judgment debtor’s total support order”). Lorelee Hamlin was substantially in compliance with her monthly child-support obligation, and, absent the confusion in accounts and without taking into consideration the previously past-due judgment amount, the summary execution may not have been authorized. See Minn. Stat. § 552.06, subd. 1(d)(1) (stating that public authority may not proceed with summary execution proceeding if judgment debtor is in compliance with previously executed written payment plan).
The district court found that there was no evidence that the CSO had acted with less than due care in allocating the payments among payment plans. The record provides support for this finding. The CSO testified that she followed departmental procedure in entering the payments on the PRISM computer software, which then allocated the payments among the different computer files assigned to the case, each representing a different place that the children had resided. She testified that an obligor could have several payment plans on a single case. After the payments were allocated, with $266 per month diverted to the file covering the new occupancy of the children, the computer showed a technical deficiency of $266 in the payment plan assigned to the original file.
Hamlin contends that the CSO knew about the
deficiency created in the original payment plan by the division of accounts but
did not notify Lorelee Hamlin, and that, as a consequence, arrearages continued
to accrue erroneously under that plan.
He further argues that the CSO failed to act with due care by not timely
correcting the mistake in allocating among payment plans. But the CSO testified that she offered
Lorelee Hamlin a new payment plan of $53.50 per month, which she indicated
would have remedied the technical deficiency under the original plan, and
Hamlin refused, with the result that she continued to be deficient under that
plan. Wayne Hamlin challenges the
credibility of the CSO’s testimony. But
as a court of review, we are obligated to defer to the district court’s
credibility determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (
Hamlin also contends that a representative
from the Minnesota Child Support Help Desk informed him that a manual payment
update rather than a levy could have been performed. But this evidence is not in the record, and
we are not permitted to consider allegations of fact that are outside the
record. Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (
Wayne Hamlin makes two final arguments that
we conclude are without merit. First he
argues that the county lacked statutory authority to collect a greater amount
of child-support payments than mandated
by a monthly child-support order. Under
Minn. Stat. § 518.5513 (2004), the county had authority to order a payment
plan to reduce the cumulative arrearages.
Wayne Hamlin also alleges a violation of 18 U.S.C. § 1001 (2000). But this section deals with false or fraudulent statements made by a federal employee, and, even if he could show a false or fraudulent statement, the CSO is a state, rather than a federal, employee.
The evidence supports the district court’s
determination that the CSO followed departmental procedure and acted with due
care. As the district court observed,
the confusion could have been averted with earlier responses on the part of the
Hamlins as well as the county. But the
ordinary-care standard does not equate to a requirement of perfect
conduct. Klingbeil v. Truesdell, 256