This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






In re the Marriage of:

Carole V. Marx, petitioner,





Robert B. Marx,





County of Anoka, intervenor,



Filed July 31, 2007


Ross, Judge


Anoka County District Court

File No. F8-80-10965


James W. Delaplain, 2140 Fourth Avenue North, Anoka, MN 55303-2268 (for respondent Carole V. Marx)


Ronald L. Thorsett, 7328 Ontario Boulevard, Eden Prairie, MN 55346 (for appellant)


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.*


U N P U B L I S H E D   O P I N I O N

ROSS, 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 (Minn. App. 1987).

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.

In 2004, Anoka County moved the district court to determine the amount that Marx was in arrears for child support.  Marx moved for retroactive forgiveness of his child-support arrearage.  The parties submitted stipulated facts, including that Marx had never paid any child support to Dowling, and that Dowling had satisfied the contract-for-deed principal by payments or setoffs against Marx’s unpaid child-support obligation.  A child-support magistrate suspended Marx’s child-support obligation during his period of incarceration but denied his request for credit against his child-support obligation to offset Dowling’s contract-for-deed payments that were due after Marx assigned the contract to the bank in 1981.  The district court refused Marx’s request to modify his obligation by forgiving the arrearage incurred during his incarceration.  The district court remanded the matter to the magistrate to calculate Marx’s child-support obligation to include Marx’s period of incarceration.  The child-support magistrate ordered Marx to pay $206,776.99 for child-support arrears, plus interest.  This appeal follows.


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 (Minn. 1999).


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.”  Id., subd. 2(d)(1).

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.  Id. 363A.03, subd. 12 (2006).  Similarly, borrowing from the dictionary, a “physical disability” is “[a]n incapacity caused by a physical defect or infirmity, or by bodily imperfection or mental weakness.”  Black’s Law Dictionary 494 (8th ed. 2004).  Marx has not demonstrated that he has such a bodily impairment or defect, or that incarceration otherwise precluded him from moving to modify.

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 (Minn. June 22, 1993).  The district court’s 1986 order that increased Marx’s child-support obligation to $1,000 per month listed Marx’s significant assets and passive income, without relying solely on earned income from activities that were later constrained by his incarceration.  The district court noted that Marx had cash on hand of $207,236 and marketable securities worth $546,000, “a resource from which to pay child support.”


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.