This opinion will be unpublished and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:


Michael J. Schwagel, petitioner,





Kelly Rylynn Ward,



Filed September 11, 2007


Shumaker, Judge


Crow Wing County District Court

File No. F1-03-2603



Michael J. Schwagel, 103 Ravilla Avenue, Staples, MN 56479 (pro se appellant)


Dennis James Smith, 13570 Grove Drive, #125, Maple Grove, MN 55311 (for respondent)


            Considered and decided by Ross, Presiding Judge; Peterson, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant-father challenges the district court’s orders establishing child support and denying his motion to amend his child-support obligation, arguing that the district court overstated his income, improperly included his veterans’ disability compensation in his income for child-support purposes, failed to consider respondent’s income, and that the child-support award is unfair.  Because the district court did not abuse its discretion by establishing child support and did not err by including appellant’s veterans’ disability payments in his income, and because the award is not unfair, we affirm.


            Appellant Michael Schwagel and respondent Kelly Ward married in 1991 and had two children together.  The marriage was dissolved in December 2003, and the parties shared joint legal and physical custody of the children.  The children lived with Ward, and the parties did not follow a set parenting-time schedule.  The judgment and decree expressly reserved establishing child support.

            Ward moved to establish child support in March 2006.  She submitted evidence that Schwagel’s monthly income is $2,762, based on veterans’ disability compensation.  Schwagel made various representations about his income, including that he receives $2,762 per month in disability payments.

            The district court ordered Schwagel to pay $826.60 in monthly child support, the guidelines amount for two children based on an obligor’s monthly income of $2,762.  Schwagel moved to modify, and Ward brought a motion for contempt because Schwagel had not paid any child support for three months.  The district court denied Schwagel’s motion and ordered him to pay arrearages. 

            Judgment was entered against Schwagel in the amount of $2,485 for back child support after Schwagel filed his notice of appeal.  Schwagel also contests that judgment.


            The district court has broad discretion to provide for the support of the parties’ children.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  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.  Id. (setting support in a manner that is against logic and facts on record); Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn. App. 1998) (improper application of the law). 

            Schwagel first argues that the district court improperly calculated his income because it “used the married rate” for his disability payments rather than the single rate. 

            A determination of the amount of an obligor’s income for child-support purposes is a finding of fact and will not be altered on appeal unless clearly erroneous.  Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn. App. 2002).  A finding of fact is clearly erroneous if the reviewing court is “left with the definite and firm conviction that a mistake has been made.”  LaChapelle v. Mitten, 607 N.W.2d 151, 160 (Minn. App. 2000) (quotation omitted), review denied (Minn. May 16, 2000).

            The record shows that Schwagel presented the district court with several different amounts of his income, including evidence that he receives $2,762 in monthly disability payments.  Ward also presented evidence showing that Schwagel receives $2,762 in monthly disability payments.  Although Schwagel argues that $2,762 represents “the married rate” and he is no longer married, the evidence shows that, notwithstanding his marital status, he receives $2,762 in monthly disability payments.  The district court’s finding that Schwagel’s monthly income is $2,762 is fully supported by the record and is not clearly erroneous.

            Next, Schwagel argues that the district court erred by including his veterans’ disability payments in his income for child-support purposes.  Income for child-support purposes in Minnesota is defined as “any form of periodic payment to an individual, including . . . military and naval retirement, pension and disability payments.”  Minn. Stat. § 518.54, subd. 6 (2004).[1]  Whether a source of funds is income for support purposes is a legal question reviewed de novo.  Sherburne County Soc. Servs. v. Riedle, 481 N.W.2d 111, 112 (Minn. App. 1992).

Schwagel contends that federal law preempts Minnesota’s definition of income and exempts his veterans’ disability payments from being used for court-ordered child support.  He cites 38 U.S.C. § 5301(a)(1) for the proposition that his veterans’ disability payments “shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”  38 U.S.C. § 5301(a)(1) (Supp. IV 2004).

            The United States Supreme Court directly addressed whether veterans’ disability payments can be subject to state-court child-support orders in Rose v. Rose, 481 U.S. 619, 107 S. Ct. 2029 (1987).  Like Schwagel, the father in Rose received only veterans’ and social-security benefits as income.  Rose, 481 U.S. at 622, 107 S. Ct. at 2032.  The Tennessee court considered these benefits when establishing child support.  Id., 107 S. Ct. at 2032.  The father in Rose relied on the same statutory language as Schwagel does to argue that federal law preempts state-court jurisdiction over federal disability compensation.  Id. at 630, 107 S. Ct. at 2036.  The Supreme Court rejected the father’s argument because “Congress clearly intended veterans’ disability benefits to be used, in part, for the support of veterans’ dependents.”  Id. at 631, 107 S. Ct. at 2036.  The Court concluded that “§ [5301(a)(1)] does not extend to protect a veteran’s disability benefits from seizure where the veteran invokes that provision to avoid an otherwise valid order of child support.”  Id. at 634, 107 S. Ct. at 2038.  Therefore, Schwagel’s argument is without merit, and the district court properly considered his disability compensation when establishing his child-support obligation.

            We conclude that the district court did not abuse its discretion by establishing child support, and Schwagel has not shown that the support award is unfair.  Consequently, because Schwagel did not show that the support order is unfair under Minn. Stat. § 518.64 subds. 1, 2 (2004), the district court did not abuse its discretion by denying Schwagel’s motion to modify the award.  See id. (stating that a district court may modify child-support payments because of substantial increase or decrease in earnings, substantial increased or decreased need of a party or child(ren), receipt of public assistance, a change in the cost of living, extraordinary medical expense for the child, or additional child-care expenses).

            Schwagel also asks this court to strike the judgment against him for his support arrearages that was entered after he filed this appeal.  Ignoring the question of whether a judgment entered after this appeal was taken is properly before this court, Schwagel does not provide any authority for reversing the judgment.  He relies solely on a statute defining the time period for which retroactive child-support modifications apply, which is not at issue in this case.  See Minn. Stat. § 518.64, subd. 2(d).  Therefore, we decline to disturb the judgment.  




[1] Schwagel argues that the district court abused its discretion by not considering Ward’s income when establishing his child-support obligation, as is required under the current statute.  Although the child-support laws changed substantially on January 1, 2007, those amendments do not apply in this case because the district court established the child support, and the parties filed their motions, before the changes became effective.  See 2006 Minn. Laws ch. 280, § 44, at 1145; compare Minn. Stat. § 518.551 (2004) with Minn. Stat. §§ 518A.34, .35 (2006).  Accordingly, because the 2004 child-support guidelines require the district court to consider only the obligor’s income, the district court did not abuse its discretion by not considering Ward’s income.  Minn. Stat. § 518.551, subd. 5(b) (2004).  Also, this opinion will use the 2004 version of the support statute.