This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
In re the Marriage of:
Carole V. Marx, petitioner,
Robert B. Marx,
Anoka County District Court
File No. F8-80-10965
James W. Delaplain,
Ronald L. Thorsett,
Robert M.A. Johnson, Anoka County Attorney, Bethany A. Fountain Lindberg, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Seventh Floor, Anoka, MN 55303 (for respondent Anoka County)
Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Harten, Judge.*
This appeal arises from a child-support dispute in which a child-support magistrate ordered Robert Marx to pay $206,776.99 for child-support arrears. Marx argues that the district court abused its discretion by not retroactively modifying his support obligation to forgive the arrearage that accrued during his incarceration, and by not offsetting his support arrearage with amounts that his former wife, Carole Dowling, owed under a contract for deed.
Robert Marx and Carole Dowling dissolved their three-year marriage in 1980. The dissolution judgment ordered Marx to pay Dowling $250 monthly for child support for their then two-year-old child. Dowling was granted the marital homestead, owing Marx the principal sum of $50,000 payable in monthly installments under a contract for deed. The judgment provided that Dowling could deduct from her monthly installments any sum that Marx failed to pay to Dowling as child support. In 1981, Marx assigned the contract for deed to a bank for $25,000, with the bank obtaining a lien against the homestead.
Dowling moved to
modify Marx’s child-support obligation in 1986.
The district court increased Marx’s monthly child-support obligation to
$1,000. Marx appealed and this court
affirmed. Marx v. Marx, 409 N.W.2d 526 (
In 1992, Marx was convicted of and incarcerated for crimes unrelated to non-payment of child support. He was released from prison in July 1996, one month after the parties’ child became emancipated.
D E C I S I O N
Marx first challenges the district court’s decision not to modify
his child-support obligation by forgiving part of his arrearages while he was
incarcerated. He also disputes the
failure to offset the amount not paid by Dowling on the contract for deed. The district court has broad discretion to
modify a child-support order and an appellate court will reverse only if the
district court abused its broad discretion by making a clearly erroneous
conclusion against logic and the facts. Gully v. Gully, 599 N.W.2d 814, 820 (
Marx contends that the district court erroneously failed to retroactively
modify his child-support obligation to forgive the arrearage that accrued
during his incarceration from January 1992 to July 1996. For the purpose of a modification motion,
there is no distinction between “forgiveness of arrearages” and “retroactive
modification.” Bruner v. Bruner, 429 N.W.2d 679, 682 (Minn. App. 1988), review denied (Minn. Nov. 30, 1988). Generally, modification of child support may
be retroactive “only with respect to any 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
retroactive modification also applies when the district court expressly finds
that “the party seeking modification was precluded from serving a motion by
reason of a significant physical or mental disability.”
Marx argues that
his 55-month incarceration was a significant physical incapacitation that
precluded him from moving to modify his child-support obligation. Marx cites no persuasive factual or legal
basis for his assertion. He suggests
that his incarceration amounts to a physical disability. It does not.
“Physical disability” is not defined in section 518.64. But the legislature has defined physical
disability elsewhere to mean a physical impairment that materially limits a
major life activity.
Marx next contends that he waited eight years after his release from prison to move to modify because he believed that his child-support obligation had already terminated upon his son’s emancipation and no enforcement action for arrears had been brought. But emancipation does not avoid accrued child-support arrearages. Minn. Stat. § 518.6195(a) (2004) (“Remedies available for the collection and enforcement of support . . . also apply to cases in which the child or children for whom support is owed are emancipated and the obligor owes past support or has an accumulated arrearage as of the date of the youngest child’s emancipation.”). The district court correctly refused to apply Marx’s motion to modify retroactively to his period of incarceration.
We therefore need not reach Marx’s contention that he was unable
to pay child support while in prison. We
note, however, that even if Marx had established a basis for retroactive
modification, his prospects for success on the merits would not be promising. The district court is “required to take into
account personal property as well as income in determining an appropriate
modification,” and a prisoner-obligor who has significant assets but no significant
living expenses may continue with his same obligation while incarcerated. Kuronen
v. Kuronen, 499 N.W.2d 51, 53-54 (Minn. App. 1993), review denied (
Marx also argues that he is entitled to an offset in his child-support arrearage against the contract-for-deed payments that Dowling failed to make after October 27, 1981, the date Marx executed an assignment of the contract for deed to a bank. Marx’s argument relies on a mischaracterization of the terms of the dissolution judgment and of his contract-for-deed assignment.
The March 1980 dissolution judgment granted Dowling the marital homestead and required her to make scheduled payments to Marx under a contract for deed. The contract obligated Marx to continue making the mortgage payments and required him to pay the outstanding mortgage balance and deliver a warranty deed to Dowling once her payments satisfied the $50,000 purchase price plus interest. Marx contends that the amounts due to him under the contract for deed from March 1980 until August 1992, when the contract for deed was paid in full, constituted in-kind child-support payments, because the judgment provided that “[i]f [Dowling] is required to pay any obligation of [Marx] or if [Marx] does not pay child support . . . such amounts shall be deducted from the payment due under the Contract.” But the dissolution judgment did not confer a mutual setoff; rather, it allowed Dowling to reduce her contract-for-deed payments to the extent that Marx failed to meet his child-support obligations to Dowling.
Marx’s misreading of the contract-for-deed assignment does even more damage to his argument. Marx maintains that the assignment was conditional and constituted only collateral security on a $25,000 loan he received from the bank. He contends that the assignment therefore did not surrender his right to receive Dowling’s continued payments. Under Marx’s assignment to the bank, he received a $25,000 payment from the bank in consideration for Marx’s agreement to “sell, assign and transfer” to the bank his interest in the contract for deed. The agreement does not direct or oblige Marx to repay the $25,000 and does not treat the $25,000 as principal. Marx simply assigned his interest in the contract for deed in exchange for $25,000. Marx’s only interest in the contract was his right to receive Dowling’s monthly payments until she satisfied the $50,000 principal. Marx therefore maintained no interest in those payments after the assignment. The district court did not err by denying Marx’s request for an offset against his child-support arrearage.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.