This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2043

 

 

Wayne A. Hamlin,

Appellant,

 

vs.

 

Mille Lacs County,

Child Support Division,

Respondent.

 

Filed August 9, 2005

Affirmed

Lansing, Judge

 

Mille Lacs County District Court

File No. C0-04-0237

 

 

Wayne A. Hamlin, 22824 Poppy St. Northwest, St. Francis, MN 55070 (pro se appellant)

 

Janice S. Kolb, Mille Lacs County Attorney, Thomas C. Lopez, Christopher J. Zipko, Assistant County Attorneys, Courthouse Square, 525 Second Street Southeast, Milaca, MN 56353 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Following trial in this action for damages against Mille Lacs County’s child-support division, the district court found that the county was immune from civil liability under Minn. Stat. § 466.03, subd. 5 (2004), because the county employee whose actions resulted in the attachment of Wayne and Lorelee Hamlin’s joint bank account had exercised due care and followed department procedure.  In this appeal, Wayne Hamlin challenges the admissibility of three late-payment notices that were not included on the county’s list of exhibits and also challenges the district court’s findings on the county’s immunity.  Because the admission of the exhibits was neither an abuse of discretion nor prejudicial and because the record supports the district court’s determination on due-care statutory immunity, we affirm.  

F A C T S

            This litigation stems from Mille Lacs County’s summary execution of a child-support judgment on funds held in Wayne and Lorelee Hamlin’s joint bank account.  Lorelee Hamlin is a child-support obligor for two children in the custody of her former husband, Dean Robinson.  In February 2003, Lorelee Hamlin entered into a payment agreement with Mille Lacs County Family Services.  The agreement acknowledged Lorelee Hamlin’s child-support arrearages amounting to $10,195.03 and her current monthly obligation of $319.20.  It required that she make timely payments on her current obligation but did not include an arrangement for payment of the $10,195.03 arrearage except for a reservation that the payment agreement did not prevent the county from using other methods to collect past-due child support. 

            One of the children moved from the father’s home, and, in June 2003, the county redirected $266 of the $319.20 monthly child-support obligation to the county’s foster-care unit.  This divided allocation required setting up a new case file for the foster-care payment.  The remaining $53.20 was still directed to the original case file and the existing payment plan with Robinson.  A county child-support officer (CSO) informed Lorelee Hamlin in early July that, because of the divided allocation of payments, she was no longer in technical compliance with the terms of the payment plan on the Robinson account.  The CSO testified that to remedy the problem she offered to set up a new payment agreement for $53.20, but Lorelee Hamlin did not want to sign a new agreement. 

            The technical noncompliance on the Robinson account prompted the county to discontinue its forebearance on the child-support arrearages.  In September 2003 the county issued a notice of support judgment levy for $10,228.98.  The county levied on two bank accounts that Lorelee Hamlin maintained jointly with her husband, Wayne Hamlin.  Wayne Hamlin successfully contested the support judgment levy on the basis that the funds in the accounts derived solely from payroll checks from his employment and therefore were not subject to levy for Lorelee Hamlin’s child-support debt.  The CSO rectified the allocation and accounting problem by implementing, with Lorelee Hamlin’s assent, two payment agreements that were applied retroactively to the support accounts.  

            Wayne Hamlin sued Mille Lacs County’s child-support division for damages caused by the child-support levy.  The claim was dismissed for Wayne Hamlin’s failure to appear, which was apparently attributable to a lack of notice.  Hamlin removed the case to district court, seeking damages of $1,785 for lost wages, court costs, attorneys’ fees, mental-distress injuries, and bank charges for returned checks.  Following an evidentiary hearing, the district court dismissed Hamlin’s claim based on the application of due-care statutory immunity under Minn. Stat. § 466.03, subd. 5 (2004).  Hamlin appeals from the district court’s judgment of dismissal, contending that the district court  (1) abused its discretion by allowing the county to admit into evidence three notices of late payments that were not on the county’s list of exhibits and (2) erred in finding that the CSO acted with due care in following department procedure.

D E C I S I O N

I

Determinations on the admissibility of evidence are within the district court’s discretion and will not be reversed absent an abuse of that discretion.  Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  To obtain a new trial based on evidentiary error, a claimant must show, not only that the ruling was erroneous, but also that it resulted in prejudice.  Id. at 46. 

            Hamlin alleges that the district court improperly allowed the county to admit an exhibit consisting of three notices of late child-support payments, which were not disclosed to him before trial as required by the Minnesota Civil Trialbook and the district court’s prior discovery order.  It is recommended practice in Minnesota district courts for parties to exchange pretrial lists of proposed trial exhibits.  Consistent with Minn. Civ. Trialbook § 12, the district court ordered that Wayne Hamlin and the county exchange witness and exhibit lists at least fourteen days before trial.  But the district court, in effect, reconsidered its discovery order by allowing the presentation of evidence not disclosed before the fourteen-day period.  See Lehman v. Norton, 191 Minn. 211, 213, 253 N.W. 663, 664 (1934) (observing that district court has power to reconsider its previous order).  

            Hamlin argues that he was prejudiced by the late disclosure of the county’s Exhibit 5, which consisted of three notices of late child-support payments that the county sent to Lorelee Hamlin.  We are not persuaded that this exhibit affected the district court’s dispositive determination that the county was entitled to due-care immunity from Wayne Hamlin’s claim for damages.  Even if the district court considered this exhibit in reaching the immunity determination, we conclude that no prejudice resulted because the exhibit was duplicative of another trial exhibit, which established the previous late payments.    

Hamlin introduced into evidence the payment agreement that Lorelee Hamlin signed in February 2003, which specifically referred to child-support arrearages of $10,195.03.  This payment agreement presented virtually the same evidence of child-support arrearages as the earlier child-support notices.  Therefore, the earlier notices were merely cumulative, and any error in admitting them was not prejudicial.  See W.G.D. v. Crandall, 640 N.W.2d 344, 349 (Minn. 2002) (stating that admission of cumulative evidence is harmless).

II

Government immunity from tort liability is a question of law, which we review de novo.  Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998).  A defendant seeking immunity “bears the burden of proving that he or she fits within the scope of the immunity.”  Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).  When the question of scope turns on factual determinations, we review those determinations under a clear-error standard.  

A municipality is generally subject to liability for the torts of its officers and employees.  Minn. Stat. § 466.02 (2004).  The county is defined as a municipality.  Minn. Stat. § 466.01, subd. 1 (2004).  By statute, however, the general rule of liability is subject to specific exceptions.  See Minn. Stat. § 466.03, subd. 1 (2004) (“Section 466.02 does not apply to any claim enumerated in this section.”).  One of these exceptions provides immunity for “[a]ny claim based upon an act or omission of an officer or employee, exercising due care, in the execution of a valid or invalid statute, charter, ordinance, resolution, or rule.”  Minn. Stat. § 466.03, subd. 5 (2004).  The district court concluded that the county was immune from suit because the CSO exercised due care in applying the summary-execution-of-child-support-judgment statute, Minn. Stat. § 552.06 (2004). 

The words “due care” in Minn. Stat. § 466.03, subd. 5, impose a negligence standard of care in the application of the statute.  Boop v. City of Lino Lakes, 502 N.W.2d 409, 411 (Minn. App. 1993), review denied (Minn. Sept. 10, 1993).  Thus, the issue of whether the county exercised due care in the enforcement of the statute presents a question of fact for resolution by the fact-finder.  Id.  The imposition of this standard of care effectively preserves the municipality’s burden of proof to show the exercise of due care.  Id.  Because due care is a factual issue, we examine the district court’s due-care findings of fact under the clear-error standard.  See Minn. R. Civ. P. 52.01 (stating that district court’s factual findings will not be reversed on appeal unless clearly erroneous).  “Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.”  Fletcher v. St. Paul Pioneer Press,589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).  

Hamlin argues that the county failed to establish that the CSO acted with due care because the CSO negligently misallocated Lorelee Hamlin’s support payments among several payment-plan accounts, thus allowing child-support arrears to accumulate to the statutory threshold for levy on funds in a bank account.  See Minn. Stat. § 552.06 (allowing summary execution of child-support judgment on funds at financial institution if “a judgment debtor . . . in arrears in court-ordered support payments in an amount equal to or greater than five times the judgment debtor’s total support order”).  Lorelee Hamlin was substantially in compliance with her monthly child-support obligation, and, absent the confusion in accounts and without taking into consideration the previously past-due judgment amount, the summary execution may not have been authorized.  See Minn. Stat. § 552.06, subd. 1(d)(1) (stating that public authority may not proceed with summary execution proceeding if judgment debtor is in compliance with previously executed written payment plan). 

The district court found that there was no evidence that the CSO had acted with less than due care in allocating the payments among payment plans.  The record provides support for this finding.  The CSO testified that she followed departmental procedure in entering the payments on the PRISM computer software, which then allocated the payments among the different computer files assigned to the case, each representing a different place that the children had resided.  She testified that an obligor could have several payment plans on a single case.  After the payments were allocated, with $266 per month diverted to the file covering the new occupancy of the children, the computer showed a technical deficiency of $266 in the payment plan assigned to the original file. 

Hamlin contends that the CSO knew about the deficiency created in the original payment plan by the division of accounts but did not notify Lorelee Hamlin, and that, as a consequence, arrearages continued to accrue erroneously under that plan.  He further argues that the CSO failed to act with due care by not timely correcting the mistake in allocating among payment plans.  But the CSO testified that she offered Lorelee Hamlin a new payment plan of $53.50 per month, which she indicated would have remedied the technical deficiency under the original plan, and Hamlin refused, with the result that she continued to be deficient under that plan.  Wayne Hamlin challenges the credibility of the CSO’s testimony.  But as a court of review, we are obligated to defer to the district court’s credibility determinations.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  Lorelee Hamlin did not testify, and the district court was entitled to weigh the evidence as presented to assess witness credibility.  We note that the county retroactively corrected the confusion in allocation within a month after the levy was vacated.

Hamlin also contends that a representative from the Minnesota Child Support Help Desk informed him that a manual payment update rather than a levy could have been performed.  But this evidence is not in the record, and we are not permitted to consider allegations of fact that are outside the record.  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993). 

Wayne Hamlin makes two final arguments that we conclude are without merit.  First he argues that the county lacked statutory authority to collect a greater amount of  child-support payments than mandated by a monthly child-support order.  Under Minn. Stat. § 518.5513 (2004), the county had authority to order a payment plan to reduce the cumulative arrearages.  See Minn. Stat. § 518.5513, subd. 5(a) (allowing, “for the purpose of securing overdue support, [an] increase [in] the amount of the monthly support payments by an additional amount equal to 20 percent of the monthly support payment to include amounts for debts or arrearages”). 

Wayne Hamlin also alleges a violation of 18 U.S.C. § 1001 (2000).  But this section deals with false or fraudulent statements made by a federal employee, and, even if he could show a false or fraudulent statement, the CSO is a state, rather than a federal, employee.

The evidence supports the district court’s determination that the CSO followed departmental procedure and acted with due care.  As the district court observed, the confusion could have been averted with earlier responses on the part of the Hamlins as well as the county.  But the ordinary-care standard does not equate to a requirement of perfect conduct.  Klingbeil v. Truesdell, 256 Minn. 360, 366, 98 N.W.2d 134, 139 (1959).  The district court’s finding that the CSO acted with due care was not clearly erroneous, and the district court did not err in concluding that the county was entitled to immunity under Minn. Stat. § 466.03, subd. 5.

            Affirmed.