This opinion will be unpublished and

may not be cited except as provided by

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







In re the Marriage of:

Todd S. Wheeler, petitioner,





Julie Ann Wheeler, n/k/a Julie Ann Thesing,



Filed September 5, 2006


Toussaint, Chief Judge


Crow Wing County District Court

File No. C7-99-2440



Thomas C. Pearson, Erickson, Pearson & Aanes, 319 South Sixth Street, Post Office Box 525, Brainerd, MN 56401 (for appellant)


Russell R. Cherne, Pennington & Lies, P.A., 1111 First Street North, Post Office Box 1756, St. Cloud, MN 56302-1756 (for respondent)


            Considered and decided by Toussaint, Chief Judge; Halbrooks, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Todd S. Wheeler challenges the district court’s denial of his motion for review of an order from a child support magistrate (CSM) that denied appellant’s motion for an order requiring respondent Julie Ann Wheeler, n/k/a Julie Ann Thesing, to contribute to the boarding school expenses of the parties’ child.  Because we see no abuse of discretion in the district court’s denial, we affirm.



By denying appellant’s motion for review of the CSM’s order, the district court was de facto confirming the order.  This court reviews “the district court’s decision confirming the CSM’s order under an abuse-of-discretion standard.”  Davis v. Davis, 631 N.W.2d 822, 826 (Minn. App. 2001), review denied (Minn. Mar. 13, 2001).

In December 2004, the parties stipulated to the transfer of custody of their daughter, J., now 16, from respondent to appellant.  In March 2005, appellant enrolled J. in a boarding school because she had behavioral problems.  The initial payment was $6,090; monthly payments were $3,490. 

Both parties moved to modify child support before a CSM.  The April 18, 2005 hearing on these motions was the appropriate place to seek an order requiring respondent to share in J.’s boarding school expenses. See Minn. Stat. § 484.702, subds. 1, 3 (2004) (establishing expedited child support hearing process, providing all proceedings modifying child support orders must be conducted in process, and appointing child support magistrates to serve in process).  But appellant did not mention the boarding school expenses at the hearing.

On May 5, 2005, shortly before the May 10, 2005 filing of the CSM’s decision, appellant moved the district court for an order requiring respondent to share J.’s boarding school expenses.  In June 2005, the district court denied the motion on the ground that there had been no change in circumstances since the May 10, 2005 order.  Appellant did not challenge that denial, and it became final 60 days later.  See Minn. R. Civ. App. P. 104.01 (providing that appeal may be taken within 60 days from entry of judgment). 

In August 2005, appellant brought the same motion before the CSM, who denied it on res judicata grounds.  Appellant moved the district court for review of the CSM’s denial; the district court denied review.  Appellant now challenges that denial, arguing that the CSM erred in concluding that res judicata applied and that Minn. Stat. § 518.64 (2004) did not provide a basis for requiring respondent to share J.’s boarding school expenses. [1]

1.         Res Judicata

The application of res judicata is reviewed as a question of law. Care Inst., Inc.-Roseville v. County of Ramsey, 612 N.W.2d 443, 446 (Minn. 2000). Res judicata precludes the litigation of claims that previously have been litigated or could have been litigated in a former action.  Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 719 (Minn. 1987).  It is properly invoked when (1) there is a final judgment on the merits; (2) a subsequent suit involves the same cause of action; and (3) the parties are identical or are in privity with the former parties.  In re Trusts by Hormel, 543 N.W.2d 668, 671 (Minn. App. 1996).

The CSM invoked res judicata because the district court had previously determined that appellant was not entitled to an order requiring respondent to share J.’s boarding school expenses and that determination had become final.  Appellant argues that the district court did not enter final judgment but “essentially referred the matter back to the CSM.”  The district court’s order and memorandum refute this argument.

The order does not refer or remand the matter to the CSM and it says explicitly that “[Appellant’s] motion is DENIED.”  The district court’s memorandum finds that appellant did not raise the issue of boarding school expenses at the April 2005 hearing before the CSM, although appellant knew the amount of those expenses at the hearing. Finding that a party failed to raise an issue at the appropriate time equates to a finding of waiver, not to a remand of the issue.  See, e.g., Graham v. Itasca County Planning Comm'n, 601 N.W.2d 461, 468 (Minn. App. 1999) (concluding that appellant "waived the issue by failing to raise it to the board"); REM-Canby, Inc. v. Minn. Dept. of Human Servs., 494 N.W.2d 71, 76 (Minn. App. 1992) (failure to raise issue in administrative proceeding precludes review on appeal), review denied (Minn. Feb. 25, 1993); Rowell v. Bd. of Adjustment of the City of Moorhead, 446 N.W.2d 917, 920 (Minn. App. 1989) (concluding that, because party "failed to raise the issue at the public hearings, despite the fact that he had legal representation and an opportunity to speak at the public hearings," party was "estopped from raising these issues in a lawsuit"), review denied (Minn. Dec. 15, 1989).  By finding that appellant had failed to raise the issue before the CSM, the district court was not “essentially referr[ing] the matter back to the CSM.”

The CSM properly invoked the district court’s decision as res judicata on the issue of requiring respondent to share J.’s boarding school expenses.

2.         Minn. Stat. § 518.64

Minn. Stat. § 518.64, subd. 2(b), provides that a party seeking modification of child support must show “a substantial change in circumstances.”  The district court found that appellant had not met this requirement.  This court reviews de novo the application of a statute to undisputed facts.  Lefto v. Hoggsbreath Enters. Inc., 581 N.W.2d 855, 856 (Minn. 1998).

Appellant provides no precedent for modifying child support without the requisite change in circumstances and offers no basis other than the child support statutes for his view that respondent should share J.’s boarding school expenses.  He relies on Minn. Stat. § 518.551, subd. 5(c)(2) (2004) (providing that court shall consider child’s educational needs in setting child support), but does not address the facts that there was no change in circumstances after March 2005, when he enrolled J. in boarding school, and that he did not ask the CSM to consider this educational need at the April 2005 hearing.

The district court did not abuse its discretion in affirming the CSM’s denial of appellant’s motion.


[1] Respondent argues that, because J. no longer incurs boarding school expenses, appellant should be sanctioned under Minn. R. Gen. Pract. 376.02, which provides that motions for review “shall be made in good faith and not for purposes of delay or harassment.” Because J. did not stop incurring boarding school expenses until the month after appellant filed his notice of appeal, respondent is presumably seeking only attorney fees on appeal. Minn. R. Civ. App. P. 139.06, subd. 1, provides:  “A party seeking attorneys’ fees on appeal shall submit such a request by motion under Rule 127.”  Respondent did not submit a motion.