This opinion will be unpublished and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

A05-2213

 

In re the Petition of:

S. A. L. H. and M. H. to Adopt B. P. C. and

In re the Custody of:

B. P. C., K. R. C., petitioner,

Respondent,

 

vs.

 

S. A. L. H.,

Appellant.

 

Filed April 4, 2006

Affirmed in part, reversed in part, and remanded

Kalitowski, Judge

 

Traverse County District Court

File Nos. F3-05-50012, F8-04-132

 

Craig O. Ash, P.O. Box 266, Milbank, SD 57252 (for respondent)

 

Ronald R. Frauenshuh, Jr., 129 Northwest Second Street, Ortonville, MN 56278 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

In this consolidated adoption and paternity, custody, and support action, appellant-mother argues that the district court (1) lacked jurisdiction to determine custody and parenting-time issues because respondent-father did not properly commence an action to adjudicate his paternity and did not sign a recognition of parentage; (2) erred by denying appellant’s request for a hearing and by allowing the county to recommend amended guidelines support based on further discovery of respondent’s income; (3) erred by directly ordering a stepparent to pay medical insurance for the child; and (4) erred in dismissing the adoption petition.  Because the district court had jurisdiction and did not err in its child-support order or in dismissing the adoption petition, we affirm on those issues.  But because the district court erred by directly ordering a stepparent who has not adopted the child to pay medical support, we reverse that part of the order and remand for further determination of medical support.

D E C I S I O N

 

            Appellant-mother S.A.L.H., who had a dating relationship with respondent-father K.R.C., gave birth to a child, B.P.C., in May 2002 in South Dakota.  At that time appellant lived in Traverse County, Minnesota, with the child; respondent lived with his mother in South Dakota.  Parentage was never disputed and respondent’s name was listed as the father on the child’s birth certificate.

The parties subsequently ended their relationship and in October 2004 respondent filed a pro se notice of motion and motion in Minnesota district court seeking a change of custody and parenting time. The district court determined that it had subject matter jurisdiction, adjudicated paternity, and determined custody and parenting-time issues. 

Appellant, who had married, sought a stepparent adoption; respondent initially signed a consent to adoption but subsequently personally served appellant with a letter withdrawing his consent.  Appellant filed a petition for adoption in February 2005 and the district court held a consolidated hearing on adoption, parenting time, and child-support issues.  The parties initially informed the court that they had reached a settlement.  But when the parties failed to reach a written agreement, the district court issued its order dismissing the adoption proceeding, determining custody and parenting time, and ordering support, including the provision of medical support by the child’s stepparent.    

I.

This court reviews de novo the legal issue of a court’s jurisdiction.  Handicraft Block Ltd. P’ship v. City of Minneapolis, 611 N.W.2d 16, 19 (Minn. 2000).  Statutory interpretation is similarly a question of law, subject to de novo review.  Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).  

In a Minnesota court that has jurisdiction over child custody matters, a parent may commence a child custody proceeding

where a decree of dissolution or legal separation has been entered or where none is sought, or when paternity has been recognized under section 257.75, by filing a petition or motion seeking custody or parenting time with the child in the county where the child is permanently resident or where the child is found or where an earlier order for custody of the child has been entered. 

 

Minn. Stat. § 518.156, subd. 1(2) (2004); see also Minn. Stat. § 257.75, subd. 3(1) (2004) (allowing parent to sign recognition of parentage as basis for allowing commencement of action to determine custody and parenting time). 

Appellant does not contend that this matter should have been brought in another state but argues that the district court lacked jurisdiction to determine father’s custody and parenting-time rights because respondent did not sign a recognition of parentage in Minnesota and did not file a petition seeking to establish parentage.  Appellant claims that before seeking custody and parenting time, father was required to serve a summons and complaint in an action to determine his paternity.  See Minn. R. Gen. Pract. 371.01 (stating that proceeding to establish parentage in expedited process “shall be commenced . . . by service of a summons and complaint”).        

But underMinn. Stat. § 257.541, subd. 2 (2004), “[i]f paternity has not been acknowledged under section 257.34 and paternity has been established under sections 257.51 to 257.74, the biological father may petition for rights of parenting time or custody in the paternity proceeding or in a separate proceeding under section 518.156.”  The district court adjudicated respondent, whose name was listed as the father on the child’s birth certificate, the parent of the child in December 2004, after the parties signed and filed an agreement in district court on custody and parenting time.  This order conclusively determined respondent’s paternity.   See Minn. Stat. § 257.66, subd. 1 (2004) (stating that judgment or order determining existence of parent-child relationship is “determinative for all purposes”).  Therefore, respondent was entitled to seek custody and parenting-time rights as the child’s parent under Minn. Stat. § 518.156.      

Respondent filed his notice of motion and motion seeking custody and parenting time before the district court’s order determining paternity.  But on this record where paternity has never been disputed, respondent’s premature filing of a notice of motion and motion constitutes a technical defect, which does not prejudice either party and does not provide grounds for dismissal.   See, e.g., Save Our Creeks v. City of Brooklyn Park, 682 N.W.2d 639, 644 (Minn. App. 2004) (stating rule that lack of attorney’s signature on complaint is technical defect rather than substantive violation, and technical defects do not provide grounds for dismissal unless adverse party is substantially prejudiced), aff’d, 699 N.W.2d 307 (Minn. 2004).  In addition, the rule cited by appellant requiring a summons and complaint for initiating a paternity action applies in a contested paternity action, rather than an action where, as here, paternity has been voluntarily acknowledged.   See Minn. R. Gen. Pract. 371.01 (requiring request for blood and genetic testing to be served with summons and complaint).    

II.

            Appellant contends that the district court violated her due-process rights by  authorizing the Traverse County Child Support and Collections Office to calculate a revised child-support amount for respondent pending further discovery, based on the statutory factors outlined in Minn. Stat. § 518.551 (2004), and to amend the child-support amount without further hearing.  Appellant maintains that she is entitled to a hearing to determine whether respondent has intentionally underreported his earnings in an effort to reduce his child-support obligation.    

A district court is not required to hold an evidentiary hearing when considering whether to modify support.  Minn. Stat. § 518.64, subd. 2(f) (2004); Long v. Creighton, 670 N.W.2d 621, 626 (Minn. App. 2003).  The district court took initial testimony on respondent’s hourly wages and annual income, and the parties agreed on a support-guidelines amount of $352 per month based on those figures, pending further confirmation of respondent’s income.  Although appellant subsequently disputed the evidentiary sufficiency of documents presented by respondent, the district court ordered support of $352 per month based on the evidence presented at the hearing.  The court also allowed further discovery to confirm respondent’s income, and authorized the county to recalculate support based on the application of the child-support guidelines to any revised income figure.  On this record, we cannot say the district court abused its discretion in failing to order a further hearing.  

Appellant implicitly argues that the district court improperly delegated to a county agency the power to determine child support.  A district court must exercise its own independent judgment and not delegate legal decisions to nonlegal personnel.  See Young v. Young, 370 N.W.2d 57, 66 (Minn. App. 1985), review denied (Minn. Sept. 13, 1985).  But either party may challenge the county’s determination of the adjusted support amount in district court, including the issue of whether appellant has reduced his income voluntarily.  Thus, we conclude that the effect of the district court’s order is to allow the county to make only a recommendation on child support and that the district court did not improperly delegate its authority.  Moreover, even absent a challenge to the recommendation, the district court must issue its order setting support. 

III.

Appellant challenges the district court’s order assigning the child’s stepparent, who has access to medical coverage through his service in the United States military, the responsibility for providing medical insurance for the child.  Medical support orders  must expressly assign or reserve responsibility for maintaining medical insurance and the division of uninsured medical costs.  Minn. Stat. § 518.171, subd. 1(a)(1) (2004).  But absent an adoption, a stepparent has no legal support duty to a child of his spouse.  See Long, 670 N.W.2d at 628 (“No case law or statute imposes a legal duty upon a new spouse to provide support for his or her step-children”).

 Respondent argues that although the stepparent was not a party to the original action, he was a party to the adoption action, which was consolidated with the custody motion.  But the district court dismissed the adoption action.  And once that action was dismissed, the district court lacked authority to bind a nonparty and erred in directly ordering stepparent medical support.  See Sammons v. Sammons, 642 N.W.2d 450, 457 (Minn. App. 2002) (stating that the district court lacked jurisdiction over a nonparty).  We therefore reverse and remand this issue for the district court, in such proceedings as the district court deems appropriate, to order medical support from one of the child’s biological parents.  See Minn. Stat. § 518.171, subd. 1 (a)(2) (stating that district court shall order party with better group dependent health and dental insurance coverage available to that person to name minor child as beneficiary). 

IV.

            Appellant argues that the district court erred in dismissing the adoption petition.  First, appellant maintains that respondent was not entitled to notice of the adoption.  But respondent’s status as an adjudicated parent entitles him to notice.  Minn. Stat. § 259.49, subd. 1(5) (2004) (stating that notice of hearing on petition to adopt a child shall be given to a person who has been adjudicated the child’s parent). 

            Appellant contends that parental consent is not required for a stepparent adoption.  She cites language in Minn. R. Adopt. P. 31.03, subd. 3(a)(4) stating that “[t]he requirements of subdivision 1 [on consent to adoption] do not apply to . . . the child’s parent in a petition for adoption by a stepparent.”  She argues that “subdivision 1” refers to subdivision one of Minn. Stat. § 259.24 (2004), which sets forth the substantive requirement of parental consent to adoption and enumerates certain exceptions to that requirement.  See Minn. Stat. § 259.24, subd. 1.  These exceptions do not include stepparent adoption.  See id.  In contrast, Minn. R. Adopt. P. 31.03 prescribes requirements of form for the execution of consent to adoption, such as that the consent be in writing, be executed by two competent witnesses, and include a notice to the parent of the right to withdraw consent.

Appellant cites no legal authority for the proposition that the exclusion from “the requirements of subdivision 1” for stepparent adoptions refers to the substantive requirements of subdivision one of Minn. Stat. § 259.24, rather than the requirements of form stated in subdivision one of the rule.  Moreover, we conclude that Minn. Stat. § 259.24 unambiguously requires the consent of respondent, the child’s adjudicated parent, to the child’s adoption.

            Finally, we reject appellant’s argument that respondent did not validly withdraw his consent because he served the withdrawal only on appellant, rather than on the Commissioner of Human Services.  Appellant cites Minn. Stat. § 259.24, subd. 6a, which states that “[w]ritten notification of withdrawal of consent must be received by the agency to which the child was surrendered no later than the tenth working day after the consent is executed and acknowledged.”  But in this contemplated stepparent adoption, the parents never executed an agreement authorizing an agency adoption.  Because the child was never surrendered to an agency for adoption, no “agency to which the child was surrendered” exists, and that part of Minn. Stat. § 259.24 requiring notice to an agency does not apply.  And because respondent validly withdrew his consent to adoption by serving it on appellant-mother, we affirm the district court’s dismissal of the petition for adoption. 

Affirmed in part, reversed in part, and remanded.