This opinion will be unpublished and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
Surayat Lola Horton,
Patrick Kunle Ayinde,
Filed October 18, 2005
Dakota County District Court
File No. FX-03-3449
James C. Backstrom, Dakota County Attorney, Valisa L. McKinney, Assistant County Attorney, Dakota County Northern Service Center, One Mendota Road West, Suite 220, West St. Paul, MN 55118 (for respondent County of Dakota)
Sally K. Mortenson,
Considered and decided by Lansing, Presiding Judge; Stoneburner, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
Horton, the obligee in an ongoing child-support proceeding, appeals the
district court’s order directing
F A C T S
Patrick Ayinde and Surayat Horton
are the parents of two children. Ayinde
paid child support to Horton and continued making the child-support payments
even after the children moved from Horton’s home to Ayinde’s home in September
2002. Horton was deported to
Ayinde moved to modify child support because of the changed circumstances. The district court reserved child support effective September 1, 2002, and ordered the county to compute the overpayment of child support and institute automatic withholding from Horton. Because Horton no longer earned wages in the United States, Dakota County imposed a support judgment levy on her bank account under Minn. Stat. § 552.06 (2004).
moved to vacate part of the order, specifically the part ordering the
computation of Ayinde’s overpayment and the automatic withholding to recoup it.
Conceding that the levy was not authorized by the statutory provisions for the
summary execution for support judgment debts,
The district court scheduled oral arguments on the disposition of the levied funds. Following the hearing, the court issued an order observing that the county’s unauthorized levy deprived Ayinde of the opportunity to properly levy Horton’s account and directed Dakota County to release the levied funds to Ayinde. Horton appeals that determination.
D E C I S I O N
A support-judgment levy
against an account at a financial institution may be challenged “on the limited
grounds that the seizure or the amount seized is improper due to mistake of
fact or that the funds held in the account are exempt from levy for child
support purposes under state or federal law.”
Minn. Stat. § 552.06, subd. 5(b)(1) (2004). The statute specifies the process available
to contest an improper levy, which requires a motion alleging a mistake of fact
or a basis for exemption.
We note at the outset that
Horton is correct that none of the applicable statutes authorizes
Horton did not bring a motion directly challenging the lawfulness of the levy. She neither alleged a mistake of fact nor a basis for exemption from the levy. She also did not comply with the notice and other procedural requirements of challenging a levy under section 552.06. Absent an account owner’s independent action for wrongful levy or a statutorily permissible challenge to the support levy, the district court’s obligation was to direct the appropriate release of the levied funds.
The limited determination of
who is entitled to the levied funds in
record supports the district court’s determination that Ayinde overpaid child
support and that Horton received approximately $4,750 to which she was not
entitled. Horton does not contend that
she was entitled to the child-support payments; thus, it is undisputed that she
knowingly received a benefit to which she is not entitled.