A05-1318

Ramsey County,

Respondent,

Wendlyn M. Roser,

f/k/a Wendlyn M. Benson,

Respondent,

vs.

Douglas B. Taylor,

Appellant.

Filed April 11, 2006

Affirmed in part, reversed in part, and remanded

Hudson, Judge

Ramsey County District Court

File No. F9-90-50828

Susan E. Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 415, St. Paul, Minnesota 55102 (for respondent Ramsey County)

Valerie A.D. Arnold, Scott M. Rodman, Tuft & Arnold, PLLC, 1703 Cope Avenue East, Suite I, Maplewood, Minnesota 55109 (for respondent Wendlyn M. Roser)

John A. Cairns, Margaret Savage, Briggs and Morgan, P.A., 2200 IDS Center, 80 South Eighth Street, Minneapolis, Minnesota 55402-2157 (for appellant)

Considered and decided by Klaphake, Presiding Judge; Hudson, Judge; and Dietzen, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

On appeal from a district court order awarding respondent-mother retroactive child support as well as ongoing support, appellant-father argues that the district court: (a) erred in concluding that the relevant action commenced in 1990; (b) abused its discretion in refusing to apply the doctrine of laches to bar an award of back support; and (c) abused its discretion in calculating his ongoing support obligation. Because the district court did not err in awarding retroactive support, we affirm in part. Because the district court’s estimated income finding underlying appellant’s ongoing support award is clearly erroneous, we reverse in part and remand.

FACTS

Appellant-father Douglas Taylor and respondent-mother Wendlyn Roser are the parents of B.T., born outside of marriage on October 28, 1988. Appellant and respondent lived together for approximately two years after B.T.’s birth. On November 4, 1990, appellant committed an act of domestic abuse against respondent and threatened to take the child. Respondent obtained an ex parte temporary order for protection and a separate order for temporary custody.

Following a trial, a Ramsey County referee found that appellant had committed acts of domestic abuse against respondent and issued a one-year order for protection. Shortly thereafter, respondent, her father, and a law-enforcement officer went to appellant’s residence to obtain respondent’s personal property. The three discovered a bag of respondent’s clothing with bullet holes and bullets. Respondent felt that this action was a threat against her safety.

On November 14, 1990, appellant executed a petition to determine paternity and custody, venued in the First Judicial District. On November 19, respondent executed a summons and complaint to establish parentage, custody, parenting time, and support in Ramsey County. In appellant’s action, the Scott County district court adjudicated paternity but transferred the issues of child support, custody, visitation, and expenses to Ramsey County to be consolidated with the respondent’s pending action.

Appellant had no contact with B.T. and did not contribute to B.T.’s support following entry of the order for protection. Appellant made no attempt to locate respondent directly or through her attorney, her parents, or the Ramsey County district court. Appellant moved to North Carolina in 1993. There is no indication in the record that respondent took any additional action on her complaint, and the district court did not issue a child-support order.

Respondent Ramsey County initiated its own action to establish appellant’s child-support obligation with a summons and complaint in January 2003. The district court assigned the county’s action the same file number as had been given to the action initiated by respondent’s 1990 summons and complaint. In March 2003, respondent served her own motion for custody and child support. Respondent requested that the district court order child support retroactive to November 20, 1990, the date respondent served the initial pleadings on appellant. In response, appellant argued that respondent abandoned her 1990 request for child support and that the doctrine of laches precluded recovery of past support.

Following written submissions, the district court issued its findings of fact and conclusions of law on December 17, 2004. Citing Minn. Stat. § 257.66, subd. 4 (2004), which allows the district court to determine a parent’s liability for past support of a child going back two years prior to commencement of the action, the district court determined that respondent commenced this action in November 1990 and, therefore, appellant’s past support obligation began on that date. Applying the guidelines to appellant’s net annual income from 1990 until 2002, the district court concluded that appellant owed $106,496 in past child support.

In setting appellant’s current child-support obligation, the district court examined appellant’s current net monthly income and projected future income. Appellant’s submissions indicated that he was self-employed following a layoff in 2001. Noting that appellant stated in “an April 2003 affidavit” that he anticipated his business restoring him to his earning capacity before self-employment, the district court averaged appellant’s net income from the three years preceding appellant’s layoff to determine his child-support obligation as of January 1, 2005. Applying the guidelines to that figure, the district court set appellant’s permanent child-support obligation at $1,025.25 per month.

The district court issued an order on May 6, 2005, directing that the December 17, 2004 order represents the final judgment with respect to the issues contained therein. Appellant did not move for amended findings or a new trial. This appeal follows.

D E C I S I O N

Appellant challenges the district court’s conclusion that appellant’s past child-support obligation began in 1990, arguing that the relevant action “commenced” in January 2003, when Ramsey County filed its summons and complaint. Minn. Stat. § 257.66, subd. 4 (2004), provides that the district court “shall limit the parent’s liability for past support of the child to the proportion of the expenses that the court deems just, which were incurred in the two years immediately preceding the commencement of the action.” Appellant contends that although respondent filed a summons and complaint seeking child support in 1990, the current action “commenced” in 2003 because (a) the Ramsey County complaint superseded respondent’s 1990 complaint, and (b) respondent abandoned her 1990 complaint by failing to pursue the claim for roughly 13 years.

Statutory interpretation presents a question of law, which this court reviews de novo. Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). If a statute, construed according to the ordinary rules of grammar, is unambiguous, this court engages in no further statutory construction and gives effect to the statute’s plain meaning. State by Beaulieu v. RSJ, Inc. 552 N.W.2d 695, 701 (Minn. 1996).

The controlling procedural rule provides that a civil action is “commenced” against a defendant “when the summons is served upon that defendant.” Minn. R. Civ. P. 3.01(a). Here, it is undisputed that respondent served appellant with a summons in November of 1990. It is likewise undisputed that the district court issued no order or final judgment with respect to respondent’s claim for child support until the May 6, 2005 judgment from which Taylor appeals. Accordingly, appellant’s argument is contrary to the plain meaning of Minn. Stat. § 257.66 as well as the rules of civil procedure. Appellant cites no authority for the proposition that a subsequent complaint filed by a different party can extinguish or supplant a prior, properly commenced action. The district court did not err in concluding that respondent’s action commenced in 1990.

Citing Hicks v. Hicks, 533 N.W.2d 885 (Minn. App. 1995), appellant next argues that the action commenced in January 2003 because the respondent abandoned her 1990 claim. In Hicks, the county served process seeking an adjudication that the obligor was in contempt of court for failing to pay child support. Hicks, 533 N.W.2d at 885. In response, the obligor moved to modify (decrease) his child support obligation retroactively. Id. at 885–86. The matter was continued several times over roughly two years. Id. at 886. Although the obligor failed to introduce evidence, conduct discovery, or otherwise pursue his motion to modify his child-support obligation, the district court modified his child-support obligation. Id. This court reversed, holding that the obligor was “deemed to have abandoned this motion, waiving any claim to retroactive modification.” Id.

Appellant argues that this case is indistinguishable from Hicks in that respondent conducted no discovery, requested no hearings, and presented no evidence in furtherance of her claim for child support. Moreover, appellant contends, a holding that respondent did not abandon her claim contradicts Minnesota public policy requiring reasonable diligence in bringing litigation to a close in order to deter prejudice. See DeMars v. Robinson King Floors, Inc., 256 N.W.2d 501, 504 (Minn. 1977) (noting the supreme court’s unwillingness to allow parties to delay suits for an unreasonable length of time). We disagree.

In our view, appellant’s reliance on Hicks is misplaced because there was no suggestion in Hicks that Hicks’s failure to pursue his motion to modify child support was due to anything but his own inertia. Hicks, 553 N.W.2d at 886. We also note that in support of its holding, Hicks cites St. Paul, M. & M. Ry. Co. v. Eckel, 82 Minn. 278, 84 N.W. 1008 (1901), in which the supreme court found gross neglect in a litigant’s failure to pursue a claim for eight years after the action commenced. Eckel, 82 Minn. at 281–82, 84 N.W. at 1009. The Eckel court based its holding, in part, on its conclusion that “[t]here was no reason why the action should not have been brought to a prompt and speedy determination.” Id. at 281, 84 N.W. at 1009. In contrast to both Hicks and Eckel, the district court here found that appellant committed domestic abuse against respondent, and that respondent failed to pursue her motion because of a reasonable fear for her safety. Appellant does not challenge this finding. Thus, it is undisputed that respondent’s failure to pursue her claim was not voluntary.

Moreover, this court’s reversal of an obligor’s motion to retroactively decrease his child-support obligation in Hicks did not adversely impact the interests of the child at issue. See, e.g., Tammen v. Tammen, 289 Minn. 28, 30, 182 N.W.2d 840, 842 (1970) (stating that the best interests of the child is the paramount consideration in child-support matters). Here, a finding that respondent abandoned her motion deprives B.T. of roughly eleven years of support payments, despite appellant’s “legal and natural duty” to provide support. Mund v. Mund, 252 Minn. 442, 446, 90 N.W.2d 309, 312 (1958); see also Vitalis v. Vitalis, 363 N.W.2d 57, 59–60 (Minn. App. 1985) (holding that a custodial parent’s lack of diligence in collecting child support does not defeat an obligor’s continuing support obligation because the support obligation is focused on the needs of the child). The public policy underlying appellant’s duty to support B.T. outweighs the public policy served by a quick resolution of respondent’s claim.

Appellant also argues that the district court erred by denying his affirmative defense of laches. This court reviews a district court’s laches decision for an abuse of discretion. Opp v. LaBine, 516 N.W.2d 193, 196 (Minn. App. 1994), review denied (Minn. Aug. 24, 1994).

Laches is an equitable doctrine which provides that “when one sits on one’s rights for too long a time, that person’s claim should be estopped from continuing because it would be inequitable to require the defendant to fight the suit.” Gully v. Gully, 599 N.W.2d 814, 825 (Minn. 1999). Courts examine four factors when deciding if the doctrine of laches applies: (1) the nature of the action; (2) the reasons for delay; (3) prejudice; and (4) policy considerations. M.A.D. v. P.R., 277 N.W.2d 27, 29 (Minn. 1979). Appellant argues that the doctrine of laches precludes an award of retroactive child support reaching back to 1990 because he has been significantly prejudiced by the delay and the award of a large lump sum. We disagree.

This court has consistently held that a lack of diligence in the collection of child support by the custodial parent does not extinguish the support obligation. See, e.g., Vitalis v. Vitalis, 363 N.W.2d 57, 59–60 (Minn. App. 1985). In Vitalis, this court affirmed an award of $12,000 in arrearages, concluding that the doctrine of laches was not a defense to the collection of arrearages because “the focus of a support obligation is on the needs of the child, not the diligence of the custodial parent.” Id. at 60; see also S.G.K. v. K.S.K., 374 N.W.2d 525, 528 (Minn. App. 1985) (holding that the doctrine of laches did not preclude collection of child-support arrearages, some of which were nine years old). While this court has not applied the holding of Vitalis to a judgment for past retroactive support, the public policy behind the Vitalis decision is directly applicable: support obligations focus on the needs of the child, regardless of the actions of the parents, because of Minnesota’s “strong state policy” that children have adequate and timely support. Schaefer v. Weber, 567 N.W.2d 29, 33 (Minn. 1997).

Acknowledging that the interests of the child are of paramount importance in issues relating to child support, appellant argues that the legislature considers some limits on collection of support to be appropriate, as evidenced by the enactment of Minn. Stat. § 257.66, subd. 4 (2004). Because the statute dictates that a parent’s retroactive support obligation can only extend back two years preceding the commencement of the action, appellant contends that the legislature intended to impose a limit directly related to the diligence of the parent seeking support.

Appellant’s argument misconstrues section 257.66. The limitation imposed precedes commencement of the action, suggesting that the legislature was concerned with notice to the noncustodial parent that he/she owed child support. See also Minn. Stat. § 257.66, subd. 4(1) (providing that a district court has discretion to deviate downward from the guidelines in setting retroactive support when the child is more than five years old and the obligor discovered the parent-child relationship within one year of commencement of the action). In appellant’s case, he was on notice that he owed child support, but he voluntarily contributed nothing, leaving respondent to bear the burden of supporting B.T. Accordingly, neither the nature of the action nor public policy support appellant’s laches defense.

Furthermore, in denying appellant’s affirmative defense of laches, the district court concluded that the laches doctrine did not apply because appellant’s domestic abuse created a reasonable fear in respondent that constituted excusable neglect in pursuing her claim for child support. While the lump-sum judgment will burden appellant financially, that burden is the product of appellant’s failure to provide support incrementally over the years. We conclude that the district court did not abuse its discretion in refusing to apply the doctrine of laches.

III

Appellant next challenges the district court’s finding setting his permanent child-support obligation at $1,025.25 per month as of January 1, 2005, arguing that the finding is unsupported by the record and that the district court improperly imputed income to him without a finding that he was voluntarily unemployed. This court reviews a district court’s award of child support under an abuse-of-discretion standard. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).

A district court may impute income to a parent “[i]f the court finds that a parent is voluntarily unemployed or underemployed during the period for which past support is being sought.” Minn. Stat. § 518.551, subd. 5b(d) (2004). The statute defines imputed income as “the estimated earning ability of a parent based on the parent’s prior earnings history, education, and job skills, and on availability of jobs within the community for an individual with the parent’s qualifications.” Id.

In addition to imputing income to parents who are voluntarily underemployed, district courts may also impute income to parents whose income is difficult to determine because they are self-employed. See Fulmer v. Fulmer, 594 N.W.2d 210, 213 (Minn. App. 1999). Because of the “opportunity for a self-employed person to support himself yet report a negligible net income,” earning capacity estimates are often used to determine a self-employed person’s child support obligation. Id. (quoting Ferguson v. Ferguson, 357 N.W.2d 104, 108 (Minn. App. 1984)).

In establishing appellant’s child-support obligation for January 1, 2005 onward, the district court explicitly noted that appellant was self-employed and, therefore, his income may be difficult to determine. The district court then estimated appellant’s income based on appellant’s earning capacity. Thus, the district court did not improperly impute income to appellant without finding that appellant was involuntarily underemployed.

But in estimating appellant’s earning capacity, the district court mistakenly relied on an affidavit submitted by appellant for the proposition that appellant believed his business would eventually return him to the economic position he occupied prior to his layoff. Appellant’s affidavit makes no such assertion. Accordingly, the district court’s estimated income finding is unsupported by evidence in the record and is clearly erroneous. We reverse the district court’s award of child support from January 1, 2005, forward and remand for either a new award or additional findings in support of the district court’s current award. Given the sparse record evidence of appellant’s current income, the district court may, in its discretion, open the record for additional proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.