This opinion will be unpublished and

may not be cited except as provided by

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




Susan Elizabeth Conley,

n/k/a Susan E. Conley de Castro,



Salvador Miguel Rosas,


Filed June 9, 1998

Reversed and remanded

Norton, Judge*

Dakota County District Court

File No. F2977839

Linda A. Olup, Olup & Associates, 7300 Metro Boulevard, Edina, MN 55439 (for appellant)

Patricia A. O'Gorman, Patricia A. O'Gorman, P.A., 8750 90th Street South, Suite 207, Cottage Grove, MN 55016 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Huspeni, Judge, and Norton, Judge.

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



This appeal is from an order of an administrative law judge (ALJ) denying appellant Susan Elizabeth Conley's motion for continuing child support from respondent Salvador Miguel Rosas. Conley appeals, arguing the ALJ's determination that he lacked jurisdiction to modify the support order was in error. We reverse and remand.


The parties to this action were never married. A son, J.M.C., was born to the parties on January 20, 1979. At an early age, J.M.C. was diagnosed with tuberous sclerosis, a degenerative disease that causes seizures, tumors, and mental retardation. An adjudication of paternity was entered by default in Ramsey County on April 1, 1980. On August 23, 1991, the district court incorporated the parties' stipulated agreement into its child support order. The order contained the following provision:

Plaintiff is reserving the issue of whether defendant shall pay child support for the minor child beyond the child's eighteenth birthday.

Thereafter, cost of living adjustments were applied and support was not contested.

In May 1997, a few months after the child's eighteenth birthday, Conley moved to extend Rosas' support obligation beyond the age of eighteen. The motion was based on

Conley's affidavit alleging that J.M.C. has been in special education since the age of two and will continue in high school until the age of twenty-two. Based on his educational assessment, Conley argued that J.M.C. will be incapable of obtaining emancipation. Conley was appointed J.M.C.'s guardian subsequent to his eighteenth birthday and Rosas does not dispute J.M.C.'s limitations.

On July 17, 1997, the matter came on for hearing before an ALJ in Dakota County. The ALJ noted that no prior order made findings to assess J.M.C.'s capacity to become self-supporting. Without citing any authority, the ALJ then determined that "a reservation that was not exercised prior to the expiration of a statutory limitation also expires upon the expiration of the statutory limitation." The ALJ then concluded that, because Conley moved for continued child support four months after J.M.C.'s eighteenth birthday, the ALJ lacked jurisdiction to extend the support period. The ALJ further determined that, absent an express finding of J.M.C.'s inability to become self-supporting, Rosas' obligation terminated as of the child's eighteenth birthday.


Child Support

Subject to certain limitations, an ALJ has the same power conferred on the district court to enforce child support obligations. Minn. Stat. § 518.5511, subd. 1(e) (1996). An ALJ is afforded broad discretion in child support cases, and this court must affirm an administrative decision absent an abuse of that discretion. See Minn. Stat. § 518.5511, subd. 4(h) (1996) (ALJ decisions are appealable in same manner as trial court decisions); Lee v. Lee, 459 N.W.2d 365, 368-69 (Minn. App. 1990), review denied (Minn. Oct. 18, 1990). Jurisdiction, however, is a legal issue. Graham v. Crow Wing County Bd. of Comm'rs, 515 N.W.2d 81, 84 (Minn. App. 1994), review denied (Minn. June 2, 1994). A reviewing court is not bound by, and need not give deference to, a trial court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

Conley argues that the ALJ erred by concluding that jurisdiction over child support is terminated on the child's eighteenth birthday absent a prior finding that the child would be incapable of support beyond majority. She contends that the court's incorporation of the parties' agreement in its 1991 order preserved jurisdiction of post-majority child support. She claims that she was not required to obtain any additional order regarding their son's condition before he reached age eighteen in order to preserve his right to continued child support.

Minn. Stat. § 518.64, subd. 4a(a) (1996), provides in part:

[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, [subd.] 2.

Under Minn. Stat. § 518.54, subd. 2 (1978), the version that applied when the duty to support was ordered, a child is "an individual under 18 * * * or * * * who, by reason of his physical or mental condition, is unable to support himself." Contrary to what the statutes allow, the ALJ refused to consider whether the child was entitled to continued support by reason of his physical or mental condition. That appellant moved for

continued support after the child turned eighteen does not automatically deprive the district court of jurisdiction. See Borich v. Borich, 450 N.W.2d 645, 648 (Minn. App. 1990) (remanding support order for child over 18 for finding on whether child was unable to support himself) (citing McCarthy v. McCarthy, 301 Minn. 270, f222 N.W.2d 331 (1974).

Respondent argues that McCarthy supports the ALJ's order because it requires an evaluation of a child's mental or physical ability to become self-sufficient "on or before the date upon which [the child] attains majority." 30 Minn. at 275, 222 N.W.2d at 334. However, the supreme court's urging in McCarthy does not preclude consideration of a child's ability to be self-supporting after the age of eighteen. See Borich, 450 N.W.2d at 648; see also Welsh v. Welsh, 446 N.W.2d 191, 194 (Minn. App. 1986) (remanding for finding on whether child is capable of support). Especially here, where the district court's 1991 order specifically reserved the issue of support beyond the age of eighteen, the ALJ must find whether the child is able to support himself. See Minn. Stat. § 518.64, subd. 4a (support terminates upon emancipation unless otherwise ordered by a court); see also Ramsay v. Ramsay, 305 Minn. 321, 324, 233 N.W.2d 729, 731 (1975) (stipulation represents parties' voluntary acquiescence in equitable settlement).[1]

Attorney Fees

In determining whether to award attorney fees on appeal, this court considers evidence of bad faith or a frivolous claim, appellant's ability to pay attorney fees, and respondent's ability to pay appellant's attorney fees. Minn. Stat. § 518.14, subd. 1 (1996).

On this record, we cannot say that Conley's appeal was frivolous or in bad faith. The record reveals, however, neither party is in need of financial assistance regarding payment of his or her attorney fees. Therefore, we do not award attorney fees.

Motion to Strike

We grant Rosas' motion to strike section A-5 of Conley's appendix. We further note that this document had no bearing on the decision in this case.

Reversed and remanded.

[1] Respondent also relies heavily on Rutherford v. Rutherford, No. C7-94-1351 (Minn. App. Dec. 6, 1994), review denied (Minn. Feb. 3, 1995), to support the ALJ's determination. Respondent's reliance is misplaced. While we do not quarrel with the holding in Rutherford, we believe this is a different case. Rutherford did not address a stipulation incorporated in a support order to reserve post-majority support.