This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C4-96-131

Beth R. Sankstone and County of Olmsted, petitioners,
Appellants,

vs.

Randy Robert Berge,
Respondent.

Filed July 23, 1996
Affirmed
Harten, Judge

Olmsted County District Court
File No. F6911588

Raymond F. Schmitz, Olmsted County Attorney, Thomas Peter Kelly, Assistant County Attorney, Government Center, 151 S.E. Fourth St., Rochester, MN 55904 (for Appellant County)

Thomas W. Healy, 119 Sixth St. S.W., Rochester, MN 55902 (for Respondent)

Considered and decided by Willis, Presiding Judge, Harten, Judge, and Holtan, Judge.*

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Appellant county challenges, for lack of jurisdiction, the district court's order correcting respondent father's child support obligation, which had been established in an administrative proceeding, or, alternatively, the retroactive application of the correction. By notice of review, respondent contests, on jurisdictional grounds, the district court's denial of his motions to dismiss the entire proceeding or vacate the administrative order. We affirm.

FACTS

Beth Sankstone and respondent Randy Berge (father) are the unmarried parents of H.B., born October 19, 1989. Sankstone has been an AFDC recipient at all times material to these proceedings. There was no adjudication of parentage, but father signed a declaration of parentage in 1989. In 1991, appellant Olmsted County (the County) brought a motion for child support, and father was personally served with an order to show cause and notice of motion. Father and the County then reached an agreement on support that was incorporated into a court order.

On January 17, 1995, the County's child support office mailed father a request for financial information, which father apparently did not receive. Because of frequent address changes, father has always listed his mother's residence for mailing purposes.

The County then requested financial information directly from father's employer. The County used the employer's figures to propose a new, higher support obligation. This information was later determined to be inaccurate--it represented estimated rather than actual earnings.

On February 28, 1995, the County sent to father's mailing address a notice of proposed child support order adjustment and a notice of the right to request an administrative conference. Father was not personally served and claims that he did not receive these notices. Father failed to appear for the hearing, and a default order based on the inaccurate financial information was entered on April 7, 1995. The order established both a higher child support obligation and a new child care obligation. The County apparently does not seriously dispute father's assertion that his total obligation would have been significantly lower had it been calculated using the proper figures.

Father was served with notice of the filing of the default order and judgment on April 18, 1995. He did not appeal. On May 10, 1995, however, he filed a motion for reconsideration. The County's Office of Administrative Hearings provides a motion form to pro se applicants that states:

This matter will be conducted by a telephone conference unless the parties waive a conference and request it be based only upon documents. If a telephone conference is necessary, the parties will be notified of the date and time for the conference by mail.

Father did not waive the conference. A clerk in the administrative hearing office led father to believe that he would be contacted about a telephone conference. According to the County's attorney and an unidentified clerk present at the court hearing, this information was incorrect; telephone conferences are not always held in these matters, even if there is no waiver. In any event, the administrative law judge denied father's motion without a conference.

On June 6, father was served with notice of the denial of his reconsideration motion. On July 20, he brought the two motions at issue in this appeal. First, he moved the district court to dismiss the entire proceeding for lack of jurisdiction, claiming that no underlying action was ever commenced. He asserts that the 1989 declaration of parentage and his 1991 child support stipulation with the County did not constitute the commencement of an action that would invest the district court with jurisdiction. The district court found that an action had been commenced and that it had jurisdiction over the proceeding.

Second, father moved to vacate the administrative order for lack of jurisdiction claiming (1) that the notice of the proposed adjustment was required to be served personally rather than mailed, and (2) that he was unfairly misled into waiting (beyond the appeal period) to be contacted about the telephone conference, which was never held. The district court rejected father's insufficiency of process claim, but, noting father's pro se status and the fact that the County ignored procedural rights that it had itself established, the court held that father was equitably entitled to reconsideration of the underlying support obligation issues.

The district court proceeded to evaluate the financial information and "modify" father's obligation. The district court applied the new amount retroactively to April 1995, when the administrative order was entered.

The County appeals the district court's reconsideration, arguing that father's only recourse was a direct appeal of the April order rather than a "collateral attack" (father's time to appeal expired on May 18, 1995, 30 days after service of notice of the filing of that order). The County alternatively argues that if reconsideration was proper, the new amount should have been applied retroactively only to July 1995, when father filed his motion. Father filed a notice of review on the jurisdictional issues discussed above.

D E C I S I O N

The issues before us are purely legal, and therefore our standard of review is de novo. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

1. Jurisdictional Issues

A. Jurisdiction of District Court over Father's Motion

The County argues that Minn. Stat. ' 518.5511 (1994 ' Supp. 1995) places jurisdiction over child support issues exclusively in the administrative process, preventing the district court from reviewing the administrative order at issue here. We disagree.

Although Minn. Stat. ' 518.5511, subd. 1, establishes an administrative process for obtaining, modifying, and enforcing child support orders, it does allow a district court proceeding if the case presents "other issues outside the jurisdiction of the administrative process." Father's motions, in which he attacked jurisdiction and sufficiency of process and asserted equitable claims, raise issues beyond that of his support obligation. Therefore, we affirm the district court's exercise of jurisdiction to review the administrative order.

B. Jurisdiction over Entire Proceeding

Respondent claims that because no summons and complaint or petition was ever served on him in these proceedings (dating back to 1991), there has never been commencement of an action. See Minn. R. Civ. P. 3.01, 3.02. We disagree.

Father's declaration of parentage gives rise to a presumption of paternity. Minn. Stat. ' 257.34, subd. 1 (1994). In Wilson v. Speer, 499 N.W.2d 850, 853 (Minn. App. 1993), review granted (Minn. July 19, 1993), appeal dismissed (Minn. Aug. 16, 1993), we held that the presumption under this section is sufficient to confer jurisdiction on the court to order child support; a paternity action is not a prerequisite to such an order. Here, both father's declaration of parentage and his original stipulation with the County were incorporated into the original order establishing his support obligation. We affirm the administrative court's exercise of jurisdiction.

C. Jurisdiction for Administrative Order

(1) Insufficiency of Process

Father argues that the administrative law judge lacked jurisdiction over him because he was not personally served with the notice of proposed child support order adjustment and the notice of his right to request an administrative conference.

Minn. Stat. ' 518.5511, subd. 2(b), provides that written notice requesting submission of information must be given by "first class mail to the parties' last known mailing addresses." The County plainly complied with this requirement.

Minn. Stat. '  518.5511, subd. 2(c) states that the notice and proposed order "shall be served under the rules of civil procedure." Father argues that this language can only be construed to require personal service, particularly when compared to the language allowing service by mail when requesting submission of information. We disagree.

Minn. R. Civ. P. 5.01 and 5.02 authorize service by mail for every order issued after service of the original complaint. There is no original complaint in this case. As noted by the district court, however, father was personally served (in 1991) with the original motion and order to show cause. His declaration of parentage and support stipulation were incorporated into an order with which he has complied since that time. That order directed him to notify the County of any address changes, which father admittedly failed to do. We conclude that the district court properly considered this objection waived.

(2) Failure to Conduct Telephone Conference

Father asserts, and the district court held, that the County unfairly misled him into waiting for a telephone conference regarding his motion to reconsider. We agree that father is entitled to equitable relief on this ground.

It appears undisputed that both the form provided by the Office of Administrative Hearings to father as a pro se applicant and the clerk who received the form indicated to father that a telephone conference would be held on his motion to reconsider. It is true that pro se applicants are generally held to the same standards as attorneys. Minn. R. Gen. Pract. 1.04; Heinsch v. Lot 27, Block 1 For's Beach, 399 N.W.2d 107, 109 (Minn. App. 1987). Here, however, the misleading information was given to father directly by the County or its employees. Had he been informed that there would be no conference, father could have more thoroughly explained the circumstances of the case in his motion to reconsider rather than simply filling in the short, pre-printed motion and affidavit forms provided to him. Under these unique circumstances, in which there is little dispute that father's support obligation was set higher than it should have been, we believe that father was equitably entitled to review and correction of the administrative order.

2. Retroactivity of Support "Modification"

The County asserts that, even if district court review of the administrative order was proper, the child support change should not have been applied retroactively beyond July 1995, when father filed his district court motions. Believing that the harm to father began with the issuance of the April order, the district court retroactively applied its correction of father's obligation to that month.

Generally, child support may be modified only upon a showing of changed circumstances. Minn. Stat. ' 518.64, subd. 2(a) (Supp. 1995). Further, absent a showing of material misrepresentation or fraud, a modification

may be made retroactive only with respect to any period during which the petitioning party has pending a motion for modification.

Minn. Stat. ' 518.64, subd. 2(c).

Here, although the parties and the district court have referred to the order as a "modification," in reality it is only an order correcting an earlier order that was based on erroneous facts. Despite the cited rule provisions, equity leads us to conclude that the district court properly applied its order retroactively to April, when the use of the incorrect financial information launched a domino effect leading to a grossly inflated child support obligation.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.