Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Jerri L. Sampair,
Daniel Andrew Gilgosch,
Filed April 14, 1998
File No. F69150067
Charles R. Haynor, Jane L. Marrone, Briggs & Morgan, P.A., 2400 IDS Center, Minneapolis, MN 55402 (for respondent)
Ronald Resnik, 6200 Shingle Creek Parkway, Suite 340, Brooklyn Center, MN 55430 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Short, Judge, and Willis, Judge.
Daniel Andrew Gilgosch appeals from the district court's order denying modification of his child support payments. Because this court lacks jurisdiction, we dismiss this appeal.
In February 1996, Sampair moved to increase child support on the ground of a substantial change in Gilgosch's circumstances. Sampair provided information that in 1995 Gilgosch purchased a home for $192,500, and to obtain a $153,000 mortgage, he supplied the mortgage company with copies of his federal tax returns that showed he had income of $85,680 in 1993 and $81,286 in 1994. Gilgosch claimed that the loan officer created false tax returns without his knowledge, and he provided the court with copies of tax returns showing that he had adjusted gross income of $20,699 in 1993 and $15,066 in 1994. After a hearing in October 1996, a referee found that Gilgosch could not meet his monthly mortgage and other loan payments on the income shown on the tax returns he provided to the court. The referee concluded that Gilgosch's "gross annual income is in fact as he represented to [the mortgage company] in the procurement of the mortgage on his present residence," determined his net monthly income to be $4,719.05, and increased his child support obligation to the guidelines amount of $1,180 per month. The referee also ordered Gilgosch to pay $72.67 per month for day care expenses and $2,000 for Sampair's attorney fees. On November 4, 1996, the district court approved the referee's recommended order. On November 8, 1996, Sampair served notice of filing of the November order. On December 4, 1996, Gilgosch filed a notice of appeal from the order, but he withdrew his appeal in January 1997.
Gilgosch did not pay the court-ordered monthly support of $1,180, but rather continued to make monthly payments of $325. On April 14, 1997, he moved for modification of visitation, reduction in child support, forgiveness of child support arrearages since the November order, and forgiveness of the attorney fees award in the November order. In an affidavit filed with his motion, Gilgosch stated: "I realize that I am asking this Court regarding the financial issues to, in essence, reconsider its decision." On July 10, 1997, the referee recommended modifying visitation and denying all other motions, finding that Gilgosch's motion was an
attempt to be heard again on the issues of the November 4, 1996 order; that the order was in error and that the Defendant's income is not as found in that order.
On July 11, 1997, the district court approved the referee's recommended order. Gilgosch appeals the district court order denying reduction of child support, forgiveness of child support arrearages, and forgiveness of the attorney fees award, and he also challenges the district court's determination of his income in its November order.
"[W]here the right to appeal from an unvacated appealable order has expired, the right of appeal is not revived by a negative order on a second motion for the same relief." Bongard v. Bongard, 342 N.W.2d 156, 158 (Minn. App. 1983) (quoting Barrett v. Smith, 183 Minn. 431, 440, 237 N.W. 15, 19 (1931)).
The court denied Gilgosch's April 1997 motion (except for a modification of visitation) after finding it was an attempt to be reheard on the same issues addressed in the November 1996 order. A motion that simply reargues a prior motion, making no new factual or legal arguments, is an improper motion for "reconsideration." Lewis v. Lewis, 572 N.W.2d 313, 315 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998); see also Carter v. Anderson, 554 N.W.2d 110, 113 (Minn. App. 1996) (stating that rules of civil procedure do not authorize motion for "reconsideration" and such a motion does not extend time for appeal), review denied (Minn. Dec. 23, 1996).
At the October 1996 hearing, Gilgosch presented arguments regarding which set of tax returns reflected his true income. After dismissing his appeal from the resulting order, Gilgosch returned to the district court to reargue the same income issues considered at the first hearing. The issues he raises in this appeal are the same as those he proposed to argue in the dismissed appeal. We conclude that Gilgosch's April 1997 motion was a motion for reconsideration, which is not authorized under the rules of civil procedure. See Welch v. Commissioner of Pub. Safety, 545 N.W.2d 692, 694 (Minn. App. 1996) (holding that rules of civil procedure do not authorize motion for reconsideration). Because Gilgosch is now in essence attempting to appeal from the November 1996 order more than 30 days after receiving notice of its filing, his appeal is untimely. This court lacks jurisdiction to consider an untimely appeal. Lewis at 316; see also Bongard at 158 (stating that "[t]ime limits on appeals are jurisdictional").
At oral argument, Gilgosch claimed that a change in his circumstances provided a basis for his April 1997 motion. On motion of either party, a district court may modify a child support order if a substantial change in circumstances is shown making the existing order unreasonable and unfair. Minn. Stat. § 518.64, subds. 1, 2 (1996). But Gilgosch did not argue a change in circumstances to the district court, and this court will not address issues not presented to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
We lack jurisdiction over the appeal and do not address any other issue.