This opinion will be unpublished and

may not be cited except as provided by

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




In Re the Marriage of:

Eileen Ann Bender, petitioner,



Wayne Aaron Bender,


Filed February 3, 1998

Affirmed in part, reversed in part, and remanded

Harten, Judge

Anoka County District Court

File No. F4-89-5418

Wayne Aaron Bender, 121 83rd Ave. N.E. #110, Fridley, MN 55432 (pro se).

Eileen Bender, 590 121st Lane N.E. Blaine, MN 55434 (pro se).

Robert M.A. Johnson, Anoka County Attorney, Janice M. Allen, Assistant Anoka County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303-2265 (for Public Authority)

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



Appellant-father, Wayne Aaron Bender, claims that the ALJ erred by not terminating child support early enough, by not terminating maintenance, and by ordering him to pay a child support arrearage. We affirm in part, reverse in part, and remand.


The stipulated judgment dissolving the marriage of father and respondent-mother Eileen Anne Bender awarded physical custody of the parties' children to mother and set father's support and maintenance obligations. In 1997, the county notified father that a cost of living allowance would increase his obligations. Father moved to terminate support, claiming that the children were emancipated. The administrative law judge (ALJ) found that the older children were emancipated and that the youngest child was self-supporting; the ALJ terminated support, and ordered income withholding until father paid his child support arrearage. On appeal, mother and father are pro se and the county filed a brief.


Under the traditional standard of review, whether to modify support is discretionary with the district court. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). That standard [applies] on appeal of an ALJ's rulings in a dissolution case. Lee v. Lee, 459 N.W.2d 365, 368-69 (Minn. App. 1990), review denied (Minn. Oct. 18, 1990). Here, however, father's failure to provide a transcript limits our review to whether the findings of fact support the conclusions of law and the judgment. Duluth Herald & News Tribune v. Plymouth Optical Co., 286 Minn. 495, 498, 176 N.W.2d 552, 555 (1970); see Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968) (party's pro se status did not relieve him of providing adequate record).

1. Section 518.5511 creates an administrative process for addressing child support issues. Citing the 1997 statute, the county claims the ALJ lacked jurisdiction to address whether the youngest child was emancipated.[1] The 1997 amendments to the relevant portions of the statute were effective August 1, 1997. See 1997 Minn. Laws ch. 245, art. 1, §§ 18-22 & ch. 203, art. 6, § 93 (amending Minn. Stat. § 518.5511 (1996)); Minn. Stat. § 645.02 (1996) (amendments effective August 1 unless legislature states otherwise). Because the ALJ's order was filed July 22, 1997, the 1996 statute still was in effect when the ALJ's order was filed. See generally McClelland v. McClelland, 393 N.W.2d 224, 226-27 (Minn. App. 1986), (court generally applies law in effect when it renders decision, unless doing so would alter parties' rights), review denied (Minn. Nov. 17, 1986).

Under the 1996 statute, the ALJ did not err by reviewing the terms of the stipulated judgment addressing termination of child support. See Minn. Stat. § 518.5511, subd. 1(e) (1996) (ALJs have "all powers, duties, and responsibilities" of a district court judge regarding child support); Murray v. Murray, 405 N.W.2d 922, 926 (Minn. App. 1987) (reviewing stipulation addressing termination of child support), review denied (Minn. July 22, 1987). The stipulated judgment refers to emancipation and to a child's ability to be self-supporting as separate reasons for terminating support. Both relate to child support, and, adopting the county's implicit equation of emancipation with an ability to become self-supporting would improperly nullify one of these provisions. See Starr v. Starr, 312 Minn. 561, 562-63, 251 N.W.2d 341, 342 (1977) (rules of contract construction apply to interpretation of stipulated dissolution judgment); see also Chergosky v. Crosstown Bell, Inc., 463 N.W.2d 522, 526 (Minn. 1990) (courts presume contract language has effect and avoid interpretations rendering provision meaningless). Thus, even if the ALJ could not address emancipation, she was not precluded from deciding whether father's youngest child is able to support himself.[2]

2. Father claims that the ALJ erred in terminating his support obligation for the youngest child. Unless an order states otherwise, a support obligation terminates automatically when the last child for whom it was set is no longer entitled to support. Minn. Stat. § 518.64, subd. 4a(a) (1996). Here, no order states otherwise and, without finding when the youngest child became self-supporting, the ALJ terminated father's support obligation as of a week after father filed his motion for reduced support. This is inconsistent with the statute and with the findings that the youngest child has worked full time "since he dropped out of school in his sophomore year." We reverse the portion of the ALJ's order terminating support as of a week after father filed this motion and remand for the ALJ to determine when the youngest child became self-supporting.

3. Father claims that because he paid as much maintenance and child support as he could afford, he should owe no arrearage. This is functionally a request by father to have his arrearage forgiven. See Darcy v. Darcy, 455 N.W.2d 518, 524-25 (Minn. App. 1990) (forgiving arrearage is retroactive modification of support governed by Minn. Stat. § 518.64, subd. 2). Father did not appeal the previous order denying his prior request for reduced support and any request for relief from arrearage accruing before that order cannot be granted. See Angelos v. Angelos, 367 N.W.2d 518, 520 (Minn. 1985) (orders denying motions to modify support are appealable); Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966) (even if district court's decision is wrong, if it was appealable, "it is still final after the time for appeal has expired"). Regarding arrearage accruing after the previous order, support modifications may be retroactive "only" to the date the motion is served unless the district court makes findings absent here. Minn. Stat. § 518.64, subd. 2(c) (1996). Without a transcript we are unable to review the issue and we cannot assume that the district court erred. Noltimier, 280 Minn. at 29, 157 N.W.2d at 531.

4. If a maintenance issue is "combined with a child support proceeding[,]" an ALJ may address the maintenance issue. Minn. Stat. § 518.5511, subd. 1(a) (1996). Because the record shows that father moved for maintenance reduction but the ALJ did not specifically address maintenance, we remand for the ALJ to do so.

5. The ALJ ruled that, under Minn. Stat. § 518.611, subd. 2(f) (1996), father is required to pay 120% of his prior obligation against his arrearage until it is paid. Section 518.611 was repealed on July 1, 1997. 1997 Minn. Laws ch. 203, art. 6, § 93. The replacement provision, Minn. Stat. § 518.6111, subd. 10(c) (Supp. 1997), was not effective until August 1, 1997. 1997 Minn. Laws ch. 203, art. 6, § 48; Minn. Stat. § 645.02. Under McClelland, courts apply the law in effect when a decision is rendered unless doing so alters the parties' rights. 393 N.W.2d at 226-27. Because the county's right to reimbursement accrued before the statute was repealed, we affirm the requirement that father pay 120% of his prior obligation toward the arrearage.

6. Before 1995, emancipation of any child automatically terminated support for that child. Minn. Stat. § 518.64, subd. 4 (1994); Reynolds v. Reynolds, 498 N.W.2d 266, 273 (Minn. App. 1993). Here, father's second child reached age 18 in February 1995. Thus, depending on the circumstances, father may have been entitled to an automatic termination of his support obligation for the older children when they reached age 18. Because the child support officer who calculated father's arrearage assumed that father's support obligation for the older children continued until his obligation to support the younger child was terminated, (1) the calculation of father's arrears may be excessive, and (2) father's support obligation, part of which he is paying towards his arrears, may be excessive. Knowledge of when father's support obligation for the older children terminated is required to determine father's arrearage and his payment toward it.

7. On remand, whether to reopen the record shall be discretionary with the ALJ. We express no opinion on the ultimate resolution of the remanded issues.

Affirmed in part, reversed in part, and remanded.

[1] That the jurisdiction issue was not presented to the ALJ does not preclude this court from addressing it. See Minn. R. Civ. P. 12.08(c) (stating lack of jurisdiction may be raised at any time); Berke v. Resolution Trust Corp., 483 N.W.2d 712, 714 (Minn. App. 1992) (applying rule 12.08(c) to address jurisdictional issue raised for the first time on appeal), review denied (Minn. May 21, 1992).

[2] The county claims the findings do not support the ruling that the youngest child is "emancipated." Because the county did not file a notice of review, we do not review this claim. See Minn. R. Civ. App. P. 106 (respondent may raise issues on appeal by filing notice of review); City of Ramsey v. Holmberg 548 N.W.2d 302, 305 (Minn. App. 1996) (failure to file notice of review means issue "not preserved for appeal and a reviewing court cannot address it"), review denied (Minn. Aug. 6, 1996).