This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Jacquelyn Ann Pollock, n/k/a Jacquelyn Ann Miller,
Jerry Joseph Duwenhoegger,
Filed May 22, 2007
Affirmed; motion granted
Nicollet County District Court
File No. 52-F2-97-050001
Michael K. Riley, Sr., Nicollet County Attorney, Kenneth R. White, Michelle Zehnder Fischer, Assistant County Attorneys, 326 South Minnesota Avenue, P.O. Box 360, St. Peter, MN 56082 (for respondent Nicollet County)
Jerry Joseph Duwenhoegger, Sr., OID
Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.
appeal from the district court’s order modifying his monthly child-support
obligation, pro se appellant argues that (1) the record does not support the
district court’s findings of fact, the findings were inadequate, and the
district court failed to adequately consider appellant’s lack of changed
circumstances and incarceration, which makes the obligation excessive; (2) the
modification deprives appellant of numerous constitutional rights; and (3) the
needs of appellant’s other children were not considered in calculating his
Jerry Joseph Duwenhoegger and respondent Jacquelyn Ann Pollock, n/k/a Jacquelyn
Ann Miller, are the parents of a child who was born on July 1, 1992. Appellant’s child-support obligation was
suspended on November 6, 1998, based on appellant’s incarceration in Minnesota
Correctional Facility (MCF) –
The child-support magistrate (CSM) granted the county’s motion to re-establish child support at $30 per month. The CSM found that appellant earns a gross income of approximately $60 per month by working 30 hours per week at $.50 per hour and “virtually all of [appellant’s] necessities are provided for him while incarcerated.” The CSM did not find credible appellant’s claim that he needs $30 per month for postage expenses and stated that “his obligation to pay support exceeds his need for writing that number of letters.”
Appellant sought review in the district court, where he provided statements showing bi‑weekly gross earnings between $20.50 and $28.50 and monthly expenses of $127.57. In addition to claiming that he cannot live on his income that remains after the child-support withholding, appellant contended that his inability to afford envelopes and postage denies him access to the courts and infringes on the exercise of his religion. Because he cannot afford mail or telephone contact, appellant asserted that the order constituted cruel and unusual punishment and that his rights under the First, Fourth, Fifth, and Eighth Amendments of the United States Constitution and the corresponding provisions in the Minnesota Constitution have been violated.
The district court affirmed the CSM’s findings of fact, conclusions of law and order, finding that they are supported by the record. Specifically, the district court found that the record supports the CSM’s finding that appellant earns $.50 per hour and works a 30-hour week. While the district court determined that the record does not support the CSM’s statement that virtually all of appellant’s necessities are provided for him as an inmate, the district court stated that “the Constitution requires the state to provide for the basic needs of individuals who are in its custody. This includes food, clothing, and stationery materials for legal correspondence.” Furthermore, the district court found appellant’s claimed expenses to be unconvincing and unsupported, given that appellant failed to provide his prison-account information to verify his income and expenses. Therefore, the district court “assume[d] that the majority of his earnings are available for the payment of child support.” This appeal follows.
a threshold matter,
district court has broad discretion to provide for the support of the parties’
children, but a district court abuses its discretion when it sets support in a
manner that is against logic and the facts on record or misapplies the
law. Rutten v. Rutten, 347 N.W.2d
47, 50 (
law defines net income for purposes of calculating a child-support obligation as
total monthly income less federal income tax, state income tax, social-security
deductions, reasonable pension deductions, union dues, cost of dependent
health-insurance coverage, cost of health or hospitalization coverage or an
amount for actual medical expenses, and a child-support or maintenance order
that is currently being paid.
record here contains a correctional-facility information response from MCF –
claims that there has not been a substantial change in circumstances to justify
modification. “It is well established”
that the district court may modify a child-support order in its “broad and
sound discretion,” reversible for an abuse of discretion only by finding a
“clearly erroneous conclusion that is against logic and the facts on record.” Moylan v. Moylan, 384 N.W.2d 859, 864
It is presumed that there has been a substantial change in circumstances . . . and the terms of a current support order shall be rebuttably presumed to be unreasonable and unfair if . . . the application of the child support guidelines . . . to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $50 per month higher or lower than the current support order.
Minn. Stat. § 518.64, subd.
2(b) (emphasis added). The district
court is required to make specific findings based on appropriate factors. Moylan, 384 N.W.2d at 863, 865. Here, the CSM reinstated appellant’s child-support
obligation based on his employment in MCF –
also argues that the district court failed to make the factual findings necessary
to order immediate wage withholding. But
relevant law stated that “[e]very support order must address income
withholding. Whenever a support order is
initially entered or modified, the full amount of the support order must be
subject to income withholding from the income of the obligor.”
argues that the income lost through child-support withholding prevents him from
affording postage, which deprives him of his rights under the United States Constitution’s
First, Fourth, Fifth, Eighth, and Fourteenth Amendments, and the Minnesota
Constitution’s Bill of Rights, article I, sections 2, 5, 7, 8, 10, and 16, and that
the district court failed to take into account prior child-support orders for
his two other children.
Affirmed; motion granted.
legislature has since changed and recodified the child-support statute in
chapter 518A effective for filings to calculate child support after January 1,
 We note that there is no support in the record for appellant’s claim that he is paying support for his other children.