This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-1082

In Re the Marriage of:

Mary B. Renken, petitioner,

Appellant,

vs.

Edwin M. Renken,

Respondent.

Filed December 24, 1996

Reversed

Short, Judge

Concurring Specially, Davies, Judge

Dakota County District Court

File No. F78148470

Mary B. Renken, 745 Third Street West, Hastings, MN 55033 (pro se appellant)

Hubert H. Humphrey, III, Attorney General, Peter B. Hofrenning, Alan Held, Assistant Attorneys General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127 (for intervenor State of Minnesota)

Stephen M. Halsey, Moore, Halsey & Eskola, PACO Office Center, Suite 160, 7260 University Ave. N.E., Fridley, MN 55432-3132 (for respondent)

James C. Backstrom, Dakota County Attorney, Sandra M. Torgerson, Assistant County Attorney, Dakota County Attorney's Office, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent County)

Considered and decided by Short, Presiding Judge, Davies, Judge, and Foley, Judge.[*]

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

SHORT, Judge

This appeal arises from an administrative decision to vacate a judgment for child support arrearages. After approximately two years of marriage and the birth of a son, Mary B. Renken (Renken) divorced Edwin M. Renken in 1982. One year after the divorce was final, and after months of evading child support obligations, Renken's former spouse consented to the termination of his parental rights. The trial court refused to terminate the parental rights of Renken's former spouse, and the Dakota County Child Support Office (county) continued its attempts to collect child support by withholding money from the former spouse's unemployment benefits and contacting him to arrange additional payments. When Renken and her former spouse entered into child support negotiations, the county closed its file. After the parties' negotiations terminated unsuccessfully, Renken's former spouse refused to pay any past or current child support, and Renken resigned herself to supporting their son alone.

Ten years later, Renken renewed her efforts to collect child support. On August 21, 1995, the county intervened on the child's behalf. A judgment of $27,600, representing child support arrearages for the period of August 1, 1985, through July 31, 1995, was entered against Renken's former spouse. When the former spouse moved to vacate the judgment, the trial court referred the matter to an administrative law judge (ALJ). After a hearing, the ALJ vacated the child support judgment. Renken moved for amended findings and conclusions. The ALJ granted the motion and amended certain findings, but did not reinstate the judgment. On appeal, Renken argues: (1) the ALJ abused its discretion by misapplying the law; and (2) Minn. Stat. § 518.5511 (1996) is unconstitutional. Renken's former spouse seeks an award of attorney fees on appeal. We reverse.

D E C I S I O N

Subject to certain limitations, an administrative law judge (ALJ) has the same power as a trial court in enforcing child support obligations. Minn. Stat. § 518.5511 (1996). An ALJ is afforded broad discretion in child support cases, and we must affirm an administrative decision absent a clear abuse of that discretion. See id. (providing decisions of ALJ are appealable in same manner as decisions of the trial court); Lee v. Lee, 459 N.W.2d 365, 368-69 (Minn. App. 1990) (stating trial court standards of review are applicable to review of ALJ's order), review denied (Minn. Oct. 18, 1990); Reck v. Reck, 346 N.W.2d 675, 677 (Minn. App. 1984) (citing Peterson v. Peterson, 304 Minn. 578, 580, 231 N.W.2d 85, 86 (1975)) (noting trial courts are afforded broad discretion in child support cases), review denied (Minn. Apr. 25, 1984).

I.

In the determination of child support obligations, the welfare of the child is the paramount consideration. Tammen v. Tammen, 289 Minn. 28, 30, 182 N.W.2d 840, 842 (1970); see Minn. Stat. § 518.64, subd. 2 (1996) (directing consideration of needs of child when modifying or suspending child support obligation). Thus, equitable defenses are not permitted in actions based on accrued payments due under a decree of dissolution. Ryan v. Ryan, 300 Minn. 244, 251 n.2, 219 N.W.2d 912, 916 n.2 (1974).

Renken argues the ALJ misapplied the law in vacating the child support judgment by considering Renken's: (1) delay in pursuing payment; (2) misrepresentations regarding parental status; and (3) interference with visitation rights. We agree. First, a custodial parent's lengthy delay in collecting child support does not bar recovery of child support arrearages unless the parent fails to act within 10 years of the judgment being entered. See Minn. Stat. § 541.04 (1996) (imposing 10-year limitation on recovery of judgments); Vitalis v. Vitalis, 363 N.W.2d 57, 59-60 (Minn. App. 1985) (recognizing focus of support obligation is on needs of child, not diligence of custodial parent); see, e.g., Benedict v. Benedict, 361 N.W.2d 429, 432 (Minn. App. 1985) (holding seven-year delay in seeking child support arrearages did not prevent collection of arrearages). The record demonstrates: (1) the judgment against Renken's former spouse was entered on August 21, 1995; and (2) Renken attempted to collect on that judgment shortly thereafter. Given these facts, the ALJ improperly considered the delay in collecting child support when determining whether to vacate the child support judgment.

Second, Renken's representations regarding parental status are irrelevant if Renken's former spouse was on constructive notice of the outcome of the termination hearing. See Jefferson County Bank v. Erickson, 188 Minn. 354, 357, 247 N.W. 245, 247 (1933) (charging a person who has knowledge of a matter in which he is interested with notice of rights a person would discover with reasonable diligence); see also Brockman v. Brockman, 133 Minn. 148, 153, 157 N.W. 1086, 1088 (1916) (citing general rule that "[w]hatever is notice enough to excite attention, and put a man upon his guard, and call for inquiry, is notice of everything to which such inquiry might have led"). The record shows: (1) more than a month after the termination hearing, Renken's former spouse received letters from the county regarding late payments and requesting financial information; (2) Renken's former spouse testified he considered his contacts with the county as verbal notification that the trial court had not terminated his parental rights; and (3) on August 15, 1995, Renken's former spouse received written notice that his parental rights had not been terminated. Under these circumstances, the ALJ improperly considered Renken's representations when deciding to vacate the child support judgment.

Third, interference with visitation is not a defense to nonpayment of support. Minn. Stat. § 518.612 (1996). The ALJ permitted testimony from Renken's former spouse and his relatives on the issue of visitation. Although the ALJ noted the issue was not a consideration in vacating the support judgment, the ALJ stated "vacating the judgment will not adequately compensate the child or his father for the years of visitation which were denied."

The ALJ determined payment of child support arrearages would not compensate the child for all the years he was without support. However, the purpose of child support is to ensure financial support for the child for present and anticipated future expenses, including education. See Minn. Stat. § 518.54, subd. 4 (1996) (defining "support money" as that money paid for care, support and education of a child). To allow nonpayment of child support on the basis of the ALJ's conclusions would effectively insulate "dead-beat" parents and render all actions for child support arrearages meaningless. After a careful review of the record, we conclude the ALJ abused its discretion in vacating the child support judgment. Because we reverse that decision on the grounds of abuse of discretion, we need not address Renken's constitutional challenges to Minn. Stat. § 518.5511.

II.

On appeal from a child support decree, we may award attorney fees if a party either (1) has unreasonably contributed to the length or expense of the proceedings, or (2) lacks the financial ability to protect his or her legitimate interests and the other party has the means to defray the needy party's legal bills. See Minn. Stat. § 518.14, subd. 1 (1996) (permitting award of attorney fees on these bases at any time in proceeding); Cummins v. Redman, 312 Minn. 237, 241, 251 N.W.2d 343, 345 (1977) (holding Minn. Stat. § 518.14 authorizes court to award attorney fees in action for child support arrearages); Case v. Case, 516 N.W.2d 570, 574 (Minn. App. 1994) (recognizing Minn. Stat. § 518.14 authorizes attorney fees on appeal). Renken's former spouse argues he is entitled to attorney fees on appeal. Because Renken's appeal has merit, we decline to award fees to her former spouse. See Anderson v. Archer, 510 N.W.2d 1, 5 (Minn. App. 1993) (refusing to award conduct-based fees on meritorious appeal).

Reversed.

DAVIES, Judge (concurring specially)

I concur entirely with the court, but write separately to suggest that it might be useful to have the arrearages paid into a trust for the benefit of the child, rather than have them simply paid over to the mother along with current support payments. A trust could avoid tensions that might otherwise arise concerning payment of arrearages.

This is simply a suggestion, which may or may not be useful. Whether a trust would be useful is a judgment this appellate court is not equipped to make.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.