may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Cheryl Ann Seeman, petitioner,
Scott Earl Seeman,
Filed May 20, 1997
Hennepin County District Court
File No. 84237
Richard J. Schieffer, Johnson & Wood, P.A., 1055 East Wayzata Blvd., Ste. 300, Wayzata, MN 55391 (for Appellant)
David T. Erickson, Attorney at Law, 7301 Ohms Lane, Ste. 345, Edina, MN 55439 (for Respondent)
Considered and decided by Davies, Presiding Judge, Harten, Judge, and Holtan, Judge.[*]
Appellant Scott Seeman challenges a district court order and an order by an ALJ extending his child support obligation for his minor daughter until she graduates from high school or reaches age 20. We reverse.
In February 1996, the Hennepin County Child Support Enforcement Unit selected the parties' case for review. A hearing was held before an administrative law judge (ALJ) to determine whether appellant's child support obligation should be modified pursuant to Minn. Stat. § 518.64, subd. 2 (1996). Following the hearing, the ALJ issued an order increasing the amount of appellant's child support obligation and directing that child support payments continue "until the * * * child reaches [her] majority, is emancipated, or until age 20 if [the] child is remaining in high school." Seeman appeals both the 1988 and the 1996 orders that effectively extend his child support obligation.
[u]nless a court order provides otherwise, a child support obligation * * * terminates automatically * * * upon the emancipation of the child as provided under section 518.54, subdivision 2.
Minn. Stat. § 518.64, subd. 4a(a) (1996). At the time of the parties' dissolution, the term "child" was defined as
an individual under 18 years of age or an individual who, by reason of his physical or mental condition, is unable to support himself.
Minn. Stat. § 518.54, subd. 2 (1980). In 1983, the legislature amended this definition to include "an individual under age 20 who is still attending secondary school." 1983 Minn. Laws ch. 144, § 1. The amendment expressly prohibited its own retroactive application:
This act is effective [May 18, 1983] and applies to all awards of child support made in actions for dissolution or legal separation commenced on or after that date.
1983 Minn. Laws ch. 144, § 2 (emphasis added).
We have consistently held that this amended definition of "child" does not apply retroactively to child support provisions in dissolution judgments entered prior to the amendment. Borich v. Borich, 450 N.W.2d 645, 648 (Minn. App. 1990) (reversing child support order retroactively applying amendment to 1976 judgment); Kleinhuizen v. Kleinhuizen, 354 N.W.2d 588, 590 (Minn. App. 1984) (reversing child support order retroactively applying amendment to 1982 judgment). Thus, the amended statutory definition of child may not be the basis for an extension of appellant's child support obligation.
A district court, however, may extend child support payments beyond the age of majority if it finds "a demonstrated inability of the 18-year-old, still in high school, to be self-supporting." Welsh v. Welsh, 446 N.W.2d 191, 194 (Minn. App. 1989), see also Borich, 450 N.W.2d at 647 (quoting McCarthy v. McCarthy, 301 Minn. 270, 274, 222 N.W.2d 331, 334 (1974)) (court may extend support obligation beyond child's 18th birthday only on showing that child is "physically or mentally deficient or unable to support himself when he reaches his majority"). But that demonstrated inability to support oneself "must extend beyond that 'inability' which results solely and inevitably from the child's continued enrollment in high school." Borich, 450 N.W.2d at 648. Mere proof that a child is enrolled in high school is insufficient because
automatic extension of the child support payments for any child still in high school after he or she attains majority would nullify the legislative mandate that Minn. Stat. § 518.54, subd. 2, as amended, apply only to dissolution proceedings commenced on or after May 18, 1983.
Neither the district court in the 1988 order, nor the ALJ in the 1996 order, made findings regarding the child's inability to support herself, which would enable the district court to extend appellant's child support obligation. In the 1988 order, the district court extended the duration of appellant's child support obligation without making any findings justifying extension of support. In the 1996 order, the ALJ extended appellant's child support obligation solely because the district court had previously included this extension in the 1988 order. The ALJ found:
The prior order * * * which amended the Decree, required [appellant] to pay continuing child support in the amount of $300 per month. This order, which was based on the parties' written stipulation, also ordered that the Decree be amended to state:
"Said payment shall continue until the last minor child reaches his majority, is emancipated, or until age 20 if that child is remaining in high school."
Although this language was not part of the Stipulation, neither party contested this change.
We conclude that both the 1988 order and the 1996 order resulted from unauthorized application of Minn. Stat. § 518.54, subd. 2, to the parties' 1981 dissolution judgment. Neither the district court nor the ALJ made findings justifying an extension of child support due to the child's inability to be self-supporting. Therefore, the durational extension of appellant's child support obligation in each of the orders constituted reversible error.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
[ ]1 An appeal from an order may be taken "within 30 days after service by the adverse party of written notice of filing * * *." Minn. R. Civ. App. P. 104.01. Because respondent never served written notice of filing of the order, the 30-day limitation period was never triggered and, consequently, this appeal of the order was timely filed. See Curtis v. Curtis, 442 N.W.2d 173, 176 (Minn. App. 1989) (appeal considered timely where nothing in record showed service of written notice of filing of order at issue).