This opinion will be unpublished and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: Renita LaNette Ray, petitioner,


David Gerald Ray,


Filed December 5, 2006


Minge, Judge


Sibley County District Court

File No. F4-99-57



Scott R. Timm, Timm Law Office, 41 West Second Street, Waconia, MN 55387 (for respondent)


David G. Ray, 38282 170th Street, Green Isle, MN 55338 (pro se appellant)


            Considered and decided by Minge, Presiding Judge; Hudson, Judge; and Huspeni, Judge.

U N P U B L I S H E D  O P I N I O N


MINGE, Judge

            Appellant claims that the district court abused its discretion in refusing to retroactively suspend his spousal maintenance payment.  We affirm.



            Appellant David Gerald Ray and respondent Renita LaNette Ray married in 1982 and divorced in 2001.  In its judgment and decree dissolving the parties’ marriage, the district court ordered appellant to pay child support and permanent spousal maintenance. 

            In 2002, appellant was arrested for and charged with growing marijuana.  On July 8, 2003, pursuant to a plea agreement, a federal court sentenced appellant to serve a year and a day in prison.  Appellant began serving his sentence on August 15, 2003, and was released to a halfway house on May 24, 2004. 

            After appellant’s release, three requests were made to modify his financial obligations in the dissolution.  First, in October 2004, appellant moved for retroactive abatement of both his child support and spousal maintenance obligations to October 2002, based on his claim that respondent failed to comply with the divorce decree.  He did not claim that his incarceration affected his financial ability to meet his obligations.  The district court denied the motion. 

            Next, in April 2005, Sibley County Human Services filed a motion requesting suspension of appellant’s child support obligation and interest arrears during the time of his incarceration.  The motion was initially denied, but after district court review, a child support magistrate (CSM) granted the motion.  Appellant claims that at the time, he was unaware that neither the motion nor the order granting the motion applied to his spousal maintenance obligation. 

            Finally, in October 2005, appellant filed a motion with the district court, this time seeking suspension of his spousal maintenance obligation and interest arrears during the period of his incarceration.  The district court denied the motion.  This appeal followed. 



            The first issue is whether the district court abused its discretion in denying appellant’s motion for retroactive suspension of his spousal maintenance obligation during the period of his incarceration.  “The district court has broad discretion in deciding whether to modify a spousal maintenance award.”  Kielley v. Kielley, 674 N.W.2d 770, 775 (Minn. App. 2004).  We review the district court’s decision for an abuse of that discretion.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).   An abuse of discretion occurs when the district court’s “decision is against logic and the facts on record.”  Kielley, 674 N.W.2d at 775 (quotation omitted).

            Generally, retroactive modification of a maintenance obligation is limited to the “period during which the petitioning party has pending a motion for modification but only from the date of service of notice of the motion . . . .”  Minn. Stat. § 518.64, subd. 2(d) (2004).  But a district court “may” apply a retroactive modification “to an earlier period” if it expressly finds that

the party seeking modification was . . . incarcerated for an offense other than nonsupport of a child during the period for which retroactive modification is sought and lacked the financial ability to pay the support ordered during that time period.  In determining whether to allow the retroactive modification, the court shall consider whether and when a request was made to the public authority for support modification.


Id., subd. 2(d)(4).  The statute’s use of the word “may” provides the district court with discretion to apply modification retroactively.  Minn. Stat. § 645.44, subd. 15 (2004); Kemp v. Kemp, 608 N.W.2d 916, 920 (Minn. App. 2000). 

            Here, the district court found that appellant’s inaction barred his request, reasoning: “[Appellant] has had sufficient time and opportunity to request a modification based on his prior incarceration, and . . . [appellant’s] inaction acts as a forfeiture of his right to receive such a modification.”

            On appeal, appellant provides three reasons for his inaction.  First, appellant contends he was unable to bring a motion prior to his incarceration because he had no knowledge of when he would be sentenced and incarcerated.  The district court found:

[Appellant] entered a plea on January 28, 2003, was sentenced on July 8, 2003, and was given until August 15, 2003 to report to prison specifically so that he would have time to make a motion to modify his support and maintenance obligations for the period of his impending incarceration. 


            In an affidavit supporting his October 2004 motion, appellant stated:

On January 28, 2003 in Federal Court, [I] accepted a plea agreement for 5th degree manufacture of marijuana and on July 8, 2003 was sentenced to 1 year and 1 day.  The Bureau of Prisons granted [me] a reporting date of August 15, 2003 to report to the Federal Prison Camp in Duluth, Minnesota.  This was to provide [me] time to bring a motion for an Expedited Child Support hearing seeking a reduction in child support and spousal maintenance during [my] term of incarceration. 


Thus, the evidence supports the district court’s finding that appellant had sufficient opportunity, prior to his incarceration, to bring such a motion.  In addition, the record demonstrates that appellant failed to promptly bring a motion upon his release from prison.  Neither appellant’s 2004 abatement request nor the April 2005 motion included the retroactivity motion at issue in this case. 

            Next, appellant contends that he was unable to act more promptly due to his inability “to determine a current address for [respondent] in July of 2003” or “to accomplish alternative service by mail” due to the commencement of his sentence.  The district court had previously responded to this argument, stating:

[Appellant]’s request for retroactive abatement, based on his claim that he was not able to effect proper personal service on [respondent], is of no legal effect given law that only requires mail service of such motions . . . and [appellant] had at least the mailing address of [respondent] as well as that of her counsel.


Here, the record indicates that appellant should have been aware of both respondent’s mailing address and the address of her attorney.  The Minnesota Rules of Civil Procedure authorize service by mail.  Minn. R. Civ. P. 4.05.  Thus, appellant’s attribution of delay to his inability to serve respondent lacks merit.

            Finally, appellant argues that his own innocent confusion led him to omit a request for maintenance modification when the child support motion was made in April 2005.  But the record indicates that in an earlier request to the district court, appellant was able to distinguish child support and maintenance modification requests and sought to modify both. 

            Appellant did not file a motion until October 2005, approximately 15 months after his release from prison.  Although there is no evidence that respondent was prejudiced, other than by delay, lack of prejudice does not compel granting the relief appellant seeks.  Because the record supports the district court’s findings that appellant had ample opportunity to bring a motion and that his arguments regarding service of the motion and his confusion lack merit, we conclude the district court did not abuse its discretion in denying appellant’s motion for modification. 


            The next issue is whether the district court erroneously imputed income to appellant.  Although the district court did not specifically impute income, appellant contends that the district court’s decision denying his motion “does in fact, impute income” to him and argues that the CSM’s “precedent of not imputing income to the [a]ppellant” should also apply to his spousal maintenance obligation.   

            Here, appellant’s imputed income claim is a red herring.  Respondent neither requested nor did the district court impute income to appellant in ruling on the retroactive abatement motion.  The district court did not make a finding of appellant’s unemployment or underemployment.  Rather, the district court’s decision to reject appellant’s request for relief involved an implicit determination that appellant’s circumstances were not so dire as to compel the district court to ignore his delays and inaction and grant relief despite the delays.  We find no evidence that the district court erred in making that decision.  Appellant had the burden on this aspect of the issue.  The imputed income claim is not before the court.