This opinion will be unpublished and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
In re the Marriage of:
Patricia D. Matey, petitioner,
Bruce A. Matey,
Filed June 20, 2006
Affirmed in part, reversed in part, and remanded
Ramsey County District Court
File No. F5-94-1621
Kevin J. McGrath, Kelly M. McSweeney, Jensen, McGrath, Mullen & McSweeney, P.L.L.P., 1350 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for respondent)
Carol Grant, Kurzman, Grant & Ojala, 219 Southeast Main Street, Suite 403, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Hudson, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Bruce A. Matey challenges a district court order that retroactively modified his child support obligation. Appellant argues that the district court (1) erred in considering appellant’s pension as income for child support purposes; (2) abused its discretion by modifying appellant’s child support obligation; (3) abused its discretion in setting the effective date of modification; (4) abused its discretion by refusing to deviate downward from the child support guidelines; (5) abused its discretion by failing to forgive child support arrearages; and (6) erred by failing to conclude that the doctrine of laches bars respondent’s claim for child support modification. We affirm all issues except that we reverse and remand the issue of the effective date of the child support modification.
D E C I S I O N
appeal from judgment where there has been no motion for new trial, “the only
questions for review are whether the evidence sustains the findings of fact and
whether such findings sustain the conclusions of law and judgment.” Erickson
v. Erickson, 434 N.W.2d 284, 286 (
designation of a particular source of funds as income for child support
purposes is a question of law to be reviewed de novo.
Here, appellant argues that the district court erred in considering his pension payments as income when calculating child support because the original divorce decree states that the parties retain all right, title, and interest in their respective pension plans. Thus, appellant contends that the court cannot consider appellant’s pension both as property for property division purposes and also as income for child support purposes. We disagree.
setting child support,
Because courts may consider periodic marital property payments when calculating child support, we conclude that the district court did not err by considering appellant’s pension as income for child support purposes.
Appellant argues that the district court abused its discretion by modifying his child support obligation. We disagree.
district court has broad discretion to modify child support. Putz v.
Putz, 645 N.W.2d 343, 347 (
district court may modify a child support order if the moving party shows (1) a
substantial change in circumstances; and (2) that the change makes the existing
award unreasonable and unfair. O’Donnell v. O’Donnell, 678 N.W.2d 471,
the district court awarded respondent a retroactive increase in child support
payments after concluding that appellant’s income significantly increased in
2000 when he began to collect on his pension, and that the increase resulted in
“a substantial change in circumstances which makes the original Order
unreasonable and unfair.” Before
appellant began collecting pension payments, appellant was paying $518 a month
in child support. Once appellant began
collecting pension payments, appellant’s net annual income increased to over
$54,000. Based on that increase, the
child support guidelines indicate that appellant’s child support payments would
be over $1,100, which is more than 20% and at least $50 per month higher than
$518. See Minn. Stat. § 518.551, subd. 5(b) (stating that when the
obligor’s net monthly income is $1,001 to $5,000, the appropriate child support
payment for one child is 25% of the obligor’s net income). The court therefore correctly determined that
Appellant asserts that the district court abused its discretion by awarding an increase in child support retroactive from October 2000 through June 2003. We agree.
courts have discretion to set the effective date of a support
modification. See Kemp v. Kemp, 608 N.W.2d 916, 920 (
the district court granted respondent a retroactive increase in child support
for October 2000 through June 2003 after determining that respondent brought
her action to modify child support on October 11, 2002. The court concluded that under Minn. Stat. §
256.87, subd. 5 (2000), retroactive child support should apply for the two
years immediately preceding the commencement of the child support action. But Minn. Stat. § 256.87, subd. 5, does
not apply to cases involving a motion to modify a child support order.
The district court
should have applied Minn. Stat. § 518.64, subd. 2(d), when determining whether respondent
was entitled to a retroactive increase in child support payments. Under that statute, the district court may
apply modification to a period before the motion for modification was filed if
the party seeking modification was unable to serve the motion because of “a material
misrepresentation of another party.”
Here, the original divorce decree did not order appellant to continually disclose his financial information. Thus, appellant did not initially have a duty to disclose changes in his financial situation. But on December 24, 2002, the parties filed a stipulation and order whereby appellant agreed to provide his financial information to respondent. The stipulation, which was approved by the court, did not provide a deadline for appellant to disclose the information. When appellant did not provide his financial information by June 2, 2003, the district court ordered appellant to bring his financial information to a hearing on June 18, 2003. The record shows that appellant eventually produced his tax returns on September 18, 2003.
the December 24, 2002 stipulation and order did not specify when appellant had
a duty to disclose his information, we conclude that appellant had a duty to
perform within a reasonable period after December 24, 2002. Cf.
State ex rel. Laurisch v. Pohl, 214
Appellant argues that the district court abused its discretion by not making any findings regarding appellant’s request for a downward departure from the child support guidelines. We disagree.
child support guidelines provide a rebuttable presumption for the district
court to use when establishing or modifying child support.
the court deviates from the guidelines, the court shall make written findings
of the amount of support calculated, the reasons for the deviation, and how the
deviation serves the best interests of the child.
the court follows the guidelines, the court does not need to make written
findings explaining its refusal to deviate.
Here, appellant has not shown that he is unable to make child support payments. In his December 21, 2004 affidavit, appellant asserted that he had $3,111 in monthly expenses and that his net pension income was only $2,531. But the district court found that appellant’s net monthly income in 2002 was $4,545. Thus, appellant’s net income exceeded his monthly expenses, and appellant has not shown an inability to pay child support. We therefore conclude that the district court did not abuse its discretion by following the child support guidelines without making findings regarding its refusal to deviate.
district court has broad discretion in deciding whether to forgive child
support arrearages and “will not be reversed but for an abuse of discretion in
the sense that the order is arbitrary or unreasonable or without evidentiary
support.” Stangel v. Stangel, 366 N.W.2d 747, 749 (
appellant argues that because he has already spent his money and his children
are now adults, the district court abused its discretion by not forgiving any
of his child support arrearages. But the
district court did not address appellant’s motion for forgiveness of child
support arrearages in the court’s July 2005 order. Because this court generally does not review
matters that the district court did not consider and decide, we decline to
review the arrearages issue here. Thiele v. Stich, 425 N.W.2d 580, 582 (
Finally, appellant argues that the doctrine of laches precludes respondent’s claim for child support modification. We disagree.
is a question to be determined in the discretion of the district court,
dependent upon particular facts. Elsen v. State Farmers Mut. Ins. Co.,
Here, appellant did not have a duty to disclose his financial information prior to December 24, 2002. And respondent requested a retroactive increase in child support on October 2, 2003, only two weeks after appellant finally disclosed the financial information to her. Thus, we conclude that the doctrine of laches does not bar respondent’s claim.
Affirmed in part, reversed in part, and remanded.