This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota Regarding the Parties:

Robert Schaps, petitioner,



Judy Anderson-Schaps,


Filed August 17, 1999

Affirmed in part, dismissed in part

Peterson, Judge

Meeker County District Court

File No. F78444

Robert D. Schaps, 236 North Sibley Avenue, Litchfield, MN 55355 (pro se)

Michael Junge, Acting Meeker County Attorney, 830 East 11th Street, Suite 214, Glencoe, MN 55336 (for respondent)

Considered and decided by Shumaker, Presiding Judge, Short, Judge, and Peterson, Judge.



Contending that he rebutted the statutory presumption that changed circumstances made his support obligation unreasonable and unfair, appellant-father argues that the support obligation should not have been increased. He also argues that the administrative support statute is unconstitutional. We affirm in part and dismiss in part.


The judgment dissolving the marriage of appellant-father Robert Schaps and respondent-mother Judy Schaps awarded mother custody of the parties' children and set father's support obligation. In 1998, father moved to dismiss an administrative support proceeding, arguing that the administrative support process was unconstitutional. The administrative law judge (ALJ) increased father's support obligation, noting father admitted that the change in circumstances established a presumption that the existing support award was unreasonable and unfair. Later, the ALJ granted father's post-hearing motion in part and reduced the increase in father's support obligation. The ALJ rejected father's constitutional claims.


1. On appeal of an ALJ's ruling in a family law case, the traditional standard of review applies. Lee v. Lee, 459 N.W.2d 365, 368-69 (Minn. App. 1990), review denied (Minn. Oct. 18, 1990); see Minn. Stat. § 518.5511, subd. 4(j) (1998) (ALJ's decision "is appealable to the court of appeals in the same manner as a decision of the district court"). Under that standard, whether to modify child support is discretionary with the district court. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). Findings of fact are not set aside unless clearly erroneous. Minn. R. Civ. P. 52.01.[1]

Child support may be modified if the moving party shows a substantial change in circumstances that makes the existing award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (1998). An existing support award is presumptively unreasonable and unfair if applying the guidelines to the parties' current circumstances would produce a support award at least 20% and $50 different than the existing award. Minn. Stat. § 518.64, subd. 2(b)(1) (1998). Father admits the existing support award is presumptively unreasonable and unfair but argues that the statutory presumption was rebutted because the record shows that (a) mother's income increased by more than his; (b) before the increase in support, both parties have a monthly surplus after paying expenses; and (c) the increase in support will leave him with a monthly deficit while it leaves mother with an even greater surplus. Father also argues that because the children's needs are satisfied by the current level of support, additional support is not required.

Father's argument is based on an incorrect assumption that the statutory presumption of unreasonableness and unfairness can be rebutted by evidence that the support recipient does not need additional support to provide for the children because the children's needs are being met without the additional support. A need-based analysis is proper for maintenance. E.g., Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989) (maintenance depends on showing of need). It is not proper for support. E.g., Minn. Stat. § 518.551, subd. 5(i) (1998) (guidelines are rebuttably presumed applicable in all cases); County of Nicollet v. Haakenson, 497 N.W.2d 611, 615 (Minn. App. 1993) (citing guidelines' presumptive applicability to all cases to reject argument that there is no authority to grant child support exceeding child's needs); Kehr v. Kehr, 375 N.W.2d 88, 90 (Minn. App. 1985) (children are "entitled to enjoy the benefits of increased income of both parents").

Since support was set, father's net monthly income has increased from $2,000 to $3,022. The record also shows (a) consistent with mother's written submissions, the ALJ found mother's monthly expenses to be $1,717; (b) mother testified her written submissions understated her monthly expenses because they omit various amounts paid in cash and amounts for certain of mother's expenses; (c) father admits the $1,717 figure is low and that it should be $1,852; and (d) the $1,717 figure is based on mother's check register, and hence her actual expenses, rather than the expenses the children would have if they had the additional support to which they are presumptively entitled. Cf. Haakenson, 497 N.W.2d at 615 (distinguishing children's "needs" from their actual "expenses"). The ALJ did not abuse his discretion by refusing to find that the statutory presumption was rebutted.

2. Father also argues his support obligation should not be increased because if the parties had stayed married, the children's standard of living would not be higher than it is now due to the fact that mother would not have re-educated herself or worked outside the home. For this argument to prevail, we would have to engage in a great deal of speculation about what would have happened had the parties remained married. We decline to do so. E.g., Justis v. Justis, 384 N.W.2d 885, 891 (Minn. App. 1986) (disapproving of speculation regarding obligor's income in setting support), review denied (Minn. May 29, 1986).

3. Father argues that the ALJ's analysis is defective because it determines the incomes and expenses of the parties and addresses the evidence regarding needs and standard of living but then fails to incorporate them into its determination of whether father rebutted the statutory presumption. This argument is resolved by our decision that the ALJ did not abuse his discretion by finding that father has not rebutted the statutory presumption.

4. Father argues that the administrative child support statute is unconstitutional. The supreme court ruled the statute unconstitutional but required that the administrative process be used until July 1, 1999. Holmberg v. Holmberg, 588 N.W.2d 720, 727 (Minn. 1999). Because the constitutionality of the administrative support statute has already been determined and the statute applies to this proceeding, we dismiss father's constitutional claims.

5. We note that the appendix to father's brief does not comply with the rules. See Minn. R. Civ. App. P. 130.01, subd. 1 (requiring pages in appendix be consecutively numbered). Any brief filed by father in the future shall comply with the rules.

Affirmed in part and dismissed in part.

[1] In his brief, father cites unpublished opinions to support his argument. Unpublished opinions are of limited value in deciding an appeal. See Minn. Stat. § 480A.08, subd. 3(c) (1998) ("[u]npublished opinions of the court of appeals are not precedential") (emphasis added); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 801 (Minn. App. 1993) (stating dangers of mis-citation and unfairness associated with use of unpublished opinions and that while persuasive, "[t]he legislature has unequivocally provided that unpublished opinions are not precedential"), review denied (Minn. Dec. 23, 1996).