This opinion will be unpublished and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
Wendlyn M. Roser,
f/k/a Wendlyn M. Benson,
Douglas B. Taylor,
Filed April 11, 2006
Ramsey County District Court
File No. F9-90-50828
Susan E. Gaertner,
Valerie A.D. Arnold, Scott M. Rodman, Tuft & Arnold, PLLC, 1703 Cope Avenue East, Suite I, Maplewood, Minnesota 55109 (for respondent Wendlyn M. Roser)
John A. Cairns, Margaret Savage, Briggs and Morgan, P.A., 2200 IDS Center, 80 South Eighth Street, Minneapolis, Minnesota 55402-2157 (for appellant)
Considered and decided by Klaphake, Presiding Judge; Hudson, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from a district court order awarding respondent-mother retroactive child support as well as ongoing support, appellant-father argues that the district court: (a) erred in concluding that the relevant action commenced in 1990; (b) abused its discretion in refusing to apply the doctrine of laches to bar an award of back support; and (c) abused its discretion in calculating his ongoing support obligation. Because the district court did not err in awarding retroactive support, we affirm in part. Because the district court’s estimated income finding underlying appellant’s ongoing support award is clearly erroneous, we reverse in part and remand.
Appellant-father Douglas Taylor and respondent-mother Wendlyn Roser are the parents of B.T., born outside of marriage on October 28, 1988. Appellant and respondent lived together for approximately two years after B.T.’s birth. On November 4, 1990, appellant committed an act of domestic abuse against respondent and threatened to take the child. Respondent obtained an ex parte temporary order for protection and a separate order for temporary custody.
a trial, a
November 14, 1990, appellant executed a petition to determine paternity and
custody, venued in the First Judicial District.
On November 19, respondent executed a summons and complaint to establish
parentage, custody, parenting time, and support in
had no contact with B.T. and did not contribute to B.T.’s support following
entry of the order for protection.
Appellant made no attempt to locate respondent directly or through her
attorney, her parents, or the
Following written submissions, the district court issued its findings of fact and conclusions of law on December 17, 2004. Citing Minn. Stat. § 257.66, subd. 4 (2004), which allows the district court to determine a parent’s liability for past support of a child going back two years prior to commencement of the action, the district court determined that respondent commenced this action in November 1990 and, therefore, appellant’s past support obligation began on that date. Applying the guidelines to appellant’s net annual income from 1990 until 2002, the district court concluded that appellant owed $106,496 in past child support.
In setting appellant’s current child-support obligation, the district court examined appellant’s current net monthly income and projected future income. Appellant’s submissions indicated that he was self-employed following a layoff in 2001. Noting that appellant stated in “an April 2003 affidavit” that he anticipated his business restoring him to his earning capacity before self-employment, the district court averaged appellant’s net income from the three years preceding appellant’s layoff to determine his child-support obligation as of January 1, 2005. Applying the guidelines to that figure, the district court set appellant’s permanent child-support obligation at $1,025.25 per month.
The district court issued an order on May 6, 2005, directing that the December 17, 2004 order represents the final judgment with respect to the issues contained therein. Appellant did not move for amended findings or a new trial. This appeal follows.
D E C I S I O N
challenges the district court’s conclusion that appellant’s past child-support
obligation began in 1990, arguing that the relevant action “commenced” in
January 2003, when
presents a question of law, which this court reviews de novo.
controlling procedural rule provides that a civil action is “commenced” against
a defendant “when the summons is served upon that defendant.”
Hicks v. Hicks, 533 N.W.2d 885 (Minn.
App. 1995), appellant next argues that the action commenced in January 2003
because the respondent abandoned her 1990 claim. In Hicks,
the county served process seeking an adjudication that the obligor was in
contempt of court for failing to pay child support. Hicks,
533 N.W.2d at 885. In response, the
obligor moved to modify (decrease) his child support obligation
argues that this case is indistinguishable from Hicks in that respondent conducted no discovery, requested no
hearings, and presented no evidence in furtherance of her claim for child
support. Moreover, appellant contends, a
holding that respondent did not abandon her claim contradicts Minnesota public
policy requiring reasonable diligence in bringing litigation to a close in
order to deter prejudice. See DeMars v. Robinson King Floors, Inc.,
256 N.W.2d 501, 504 (
our view, appellant’s reliance on Hicks is
misplaced because there was no suggestion in Hicks that Hicks’s failure to pursue his motion to modify child
support was due to anything but his own inertia. Hicks,
553 N.W.2d at 886. We also note that in
support of its holding, Hicks cites St. Paul, M. & M. Ry. Co. v. Eckel,
this court’s reversal of an obligor’s motion to retroactively decrease his
child-support obligation in Hicks did
not adversely impact the interests of the child at issue. See,
e.g., Tammen v. Tammen, 289
also argues that the district court erred by denying his affirmative defense of
laches. This court reviews a district
court’s laches decision for an abuse of discretion. Opp v.
LaBine, 516 N.W.2d 193, 196 (
is an equitable doctrine which provides that “when one sits on one’s rights for
too long a time, that person’s claim should be estopped from continuing because
it would be inequitable to require the defendant to fight the suit.” Gully
v. Gully, 599 N.W.2d 814, 825 (
This court has consistently held
that a lack of diligence in the collection of child support by the custodial
parent does not extinguish the support obligation. See,
e.g., Vitalis v. Vitalis, 363
N.W.2d 57, 59–60 (
Acknowledging that the interests of the child are of paramount importance in issues relating to child support, appellant argues that the legislature considers some limits on collection of support to be appropriate, as evidenced by the enactment of Minn. Stat. § 257.66, subd. 4 (2004). Because the statute dictates that a parent’s retroactive support obligation can only extend back two years preceding the commencement of the action, appellant contends that the legislature intended to impose a limit directly related to the diligence of the parent seeking support.
Appellant’s argument misconstrues section 257.66. The limitation imposed precedes commencement of the action, suggesting that the legislature was concerned with notice to the noncustodial parent that he/she owed child support. See also Minn. Stat. § 257.66, subd. 4(1) (providing that a district court has discretion to deviate downward from the guidelines in setting retroactive support when the child is more than five years old and the obligor discovered the parent-child relationship within one year of commencement of the action). In appellant’s case, he was on notice that he owed child support, but he voluntarily contributed nothing, leaving respondent to bear the burden of supporting B.T. Accordingly, neither the nature of the action nor public policy support appellant’s laches defense.
Furthermore, in denying appellant’s affirmative defense of laches, the district court concluded that the laches doctrine did not apply because appellant’s domestic abuse created a reasonable fear in respondent that constituted excusable neglect in pursuing her claim for child support. While the lump-sum judgment will burden appellant financially, that burden is the product of appellant’s failure to provide support incrementally over the years. We conclude that the district court did not abuse its discretion in refusing to apply the doctrine of laches.
next challenges the district court’s finding setting his permanent child-support
obligation at $1,025.25 per month as of January 1, 2005, arguing that the
finding is unsupported by the record and that the district court improperly
imputed income to him without a finding that he was voluntarily
unemployed. This court reviews a
district court’s award of child support under an abuse-of-discretion
standard. Moylan v. Moylan, 384 N.W.2d 859, 864 (
A district court may impute
income to a parent “[i]f the court finds that a parent is voluntarily
unemployed or underemployed during the period for which past support is being
sought.” Minn. Stat. § 518.551, subd.
5b(d) (2004). The statute defines
imputed income as “the estimated earning ability of a parent based on the
parent’s prior earnings history, education, and job skills, and on availability
of jobs within the community for an individual with the parent’s
In addition to imputing
income to parents who are voluntarily underemployed, district courts may also
impute income to parents whose income is difficult to determine because they
are self-employed. See Fulmer v. Fulmer, 594 N.W.2d 210, 213 (
In establishing appellant’s child-support obligation for January 1, 2005 onward, the district court explicitly noted that appellant was self-employed and, therefore, his income may be difficult to determine. The district court then estimated appellant’s income based on appellant’s earning capacity. Thus, the district court did not improperly impute income to appellant without finding that appellant was involuntarily underemployed.
But in estimating appellant’s earning capacity, the district court mistakenly relied on an affidavit submitted by appellant for the proposition that appellant believed his business would eventually return him to the economic position he occupied prior to his layoff. Appellant’s affidavit makes no such assertion. Accordingly, the district court’s estimated income finding is unsupported by evidence in the record and is clearly erroneous. We reverse the district court’s award of child support from January 1, 2005, forward and remand for either a new award or additional findings in support of the district court’s current award. Given the sparse record evidence of appellant’s current income, the district court may, in its discretion, open the record for additional proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.