This opinion will be unpublished and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

C6-96-1555

In Re the Marriage of:

Marsha Mae Wills, petitioner,

Respondent,

vs.

David Harley Wills,

Appellant.

Filed January 14, 1997

Reversed and Remanded

Davies, Judge

Brown County District Court

File No. F589359

Michael K. Riley, Nicollet County Attorney, Todd W. Westphal, Assistant County Attorney, P.O. Box 360, St. Peter, MN 56082-0360 (for Respondent)

Ross M. Amundson, P.O. Box 241, Paynesville, MN 56362 (for Appellant)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Davies, Judge.

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

DAVIES, Judge

Appellant child support obligor challenges district court's retroactive modification of his support obligation. We reverse and remand.

FACTS

A 1989 judgment and decree dissolved the marriage of appellant David Harley Wills and respondent Marsha Mae Wills. Respondent was awarded custody of the parties' five minor children, and appellant was required to pay child support.

In February 1991, appellant's support obligation was reduced to $250 per month. The order provided:

The [appellant's] ongoing child support obligation shall be reviewed six months from the date of this hearing, at which time the [respondent] may request a modification of the child support without making a showing of a substantial change in circumstances, as required by Minnesota Statutes.

This arrangement was made to give appellant time to reduce his expenses so that he could meet a greater support obligation.

The six-month review was not done, apparently because appellant had been injured and was no longer employed. Over the next several years, appellant received workers' compensation benefits, and it does not appear that he had any consistent employment.

Nicollet County (county) continued to monitor appellant's income and employment status. In October 1992, the county served a contempt motion for failure to pay support, but that motion was not heard, at least initially, because of medical emergencies. In June 1994, appellant was found in civil contempt following another support-related motion and was ordered to conduct a job search. In October 1995, the county learned that a social security disability claim by appellant had been approved and that, in addition to future monthly payments, he would be receiving a lump sum for past disability. In addition, he also received retroactive workers' compensation benefits based on a determination that he was permanently totally disabled. The county served appellant with a contempt motion in February 1996, and, in April 1996, a motion to modify support.

In June 1996, following a hearing on these motions, the district court increased appellant's ongoing support obligation effective June 1, 1996, and also "redetermined [his] child support obligation for the period of August 1991 to May 31, 1996, pursuant to the February 11, 1991 Order." The court ordered him to pay $174.28 per month to cover a retroactive support obligation. The court stated:

[Appellant's] child support obligation was not reviewed in six months [after the February 1991 order] or at any time thereafter, due in part to the fact that [appellant] was unemployed for much of the time and the amount of his income was not readily apparent to [respondent].

Appellant argues that, under Minn. Stat. § 518.64, subd. 2(c), the court did not have authority to make a retroactive award covering any period before April 1996, the date he was served with the current modification motion.

D E C I S I O N

Statutory construction is a question of law to be reviewed de novo. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).

Minn. Stat. § 518.64, subd. 2(c) (1996), after prohibiting retroactive modification, goes on to provide:

[M]odification may be applied to an earlier period if the court makes express findings that the party seeking modification was precluded from serving a motion by reason of a significant physical or mental disability, a material misrepresentation of another party, or fraud upon the court and that the party seeking modification, when no longer precluded, promptly served a motion.

The district court made no findings of disability, misrepresentation, or fraud under the statute and, indeed, respondent does not claim that any statutory exception applies. Instead, the district court's decision is based entirely on what appear to be equitable concerns and the language in the February 1991 order. But neither the district court nor respondent provides any authority for making a retroactive child support award based on these considerations. The statute unambiguously provides that a retroactive modification may not apply to any period prior to notice of the modification motion unless a specified exception applies.[1] The trial court erred as a matter of law in making a support award retroactive to August 1991.

There may, however, be grounds for making the award retroactive to a motion in October 1992. Respondent notes that the contempt motion served in that month also moves for a modification of child support. There is no reason apparent from the current record why that motion might not be sufficient to set the date from which a retroactive modification could commence. Respondent vaguely made this argument to the district court, but the court did not discuss it in its order. We remand for consideration of the issue.[2]

Reversed and remanded.

[ ]1 Respondent argues that there was insufficient income information prior to its 1996 motion to determine the proper amount of a modification, but this has not been recognized by the legislature as a basis upon which to escape the prohibition of retroactive child support awards. Furthermore, a motion could have been made and action on it stayed until information became available.

[ ]2 We note that the parties should be permitted to supplement the record on remand should they have additional evidence bearing on the circumstances of the October 1992 motion.