Sandra Kay Graving, 12425 Holly Circle, Coon Rapids, MN 55448 (respondent pro se)

William R. Lindman, William R. Lindman, P.A., 2006 First Avenue North, Suite 205, Anoka, MN 55303 (for appellant)

Considered and decided by Short, Presiding Judge, Peterson, Judge, and Parker, Judge.[*]

In this appeal from an order denying his motion to modify child support, appellant argues that as a matter of law, he is entitled to a child support reduction upon the emancipation of the parties' oldest child. We affirm.

On August 13, 1998, the parties' oldest child turned 18. Father moved to modify his child support obligation based on the child's emancipation. Following a hearing, the trial court concluded that father failed to prove that a substantial change in circumstances had occurred that would require a modification of his child support obligation and denied father's motion.

The dissolution decree provided:

[Father] shall pay to [mother], as and for the care and support of the minor children, the sum of $1,000 per month. Said amount is in excess of the sum designated by Minnesota Child Support Guidelines, or 35% of [father's] net monthly income of $2,600.00. Said support shall continue until the youngest child of the parties reaches 18 years of age, becomes emancipated, is under 20 and still attending secondary school, joins the armed services of the United States, marries, dies, or until further Order of the Court. Both parties shall have the right to seek modification of support in the future, pursuant to Minnesota Statue § 518.64, subd. 4a(c).

This provision of the decree is ambiguous because the phrase, "Said support shall continue," could mean either that the $1,000 per month support award shall continue until the youngest child becomes emancipated or that support shall continue until the youngest child becomes emancipated, but in a reduced amount after the oldest child's emancipation. See Minn. Stat. § 518.64, subd. 4a(c) (1998) (obligor may request modification of support upon a child's emancipation if minor children remain covered under the support order); Halvorson v. Halvorson, 381 N.W.2d 69, 71 (Minn. App. 1986) (language is ambiguous if reasonably susceptible to more than one interpretation; existence of ambiguity is a question of law). At the hearing on the modification motion, the trial court stated:

I just signed and decided this case in April. It's not even been a year. It was clear when I signed it that the expectation was that child support would go until the youngest child turned eighteen.

Although this comment does not explicitly state that the support provision in the dissolution decree means that the $1,000 monthly support award shall continue until the youngest child is emancipated, we conclude that that is what the trial court meant. The issue before the court was whether support should be reduced because the oldest child was emancipated. Had the court believed that the decree meant that support was to continue, but the amount was to be redetermined upon the emancipation of the oldest child, it would have made no sense to say that "child support would go until the youngest child turned eighteen," and then not determine the amount of child support for two children. Instead, the trial court's comment clarified that under the decree, the $1,000 monthly support is to continue until the youngest child becomes emancipated. See Stieler v. Stieler, 244 Minn. 312, 320, 70 N.W.2d 127, 132 (1955) (where a judgment is ambiguous or indefinite in its terms, the trial court has authority to clarify the language); Mikoda v. Mikoda, 413 N.W.2d 238, 242 (Minn. App. 1987) (trial court's construction of its own decree given "great weight" on appeal), review denied (Minn. Dec. 22, 1987).

This construction is consistent with Minn. Stat. § 518.64, subd. 4a(b), which provides:

A child support obligation for two or more children that is not a support obligation in a specific amount per child continues in the full amount until the emancipation of the last child for whose benefit the order was made, or until further order of the court.

Under this statute, the child support obligation in the decree did not automatically change upon the emancipation of the oldest child, but it could be modified by order of the court. Under Minn. Stat. § 518.64, subd. 2(a)(2) (1998), the court may modify the support order upon a showing of decreased need of the children that makes the terms of the support order unreasonable and unfair.

Minn. Stat. § 518.64, subd. 2(b)(1), provides:

It is presumed that there has been a substantial change in circumstances * * * and the terms of a current support order shall be rebuttably presumed to be unreasonable and unfair if:

(1) the application of the child support guidelines in section 518.551, subdivision 5, to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $50 per month higher or lower than the current support order[.]

Father's argument is based on the incorrect premise that all that he must do to become entitled to a reduced child support obligation is establish that there has been a substantial change in circumstances. But, under Minn. Stat. § 518.64, subd. 2(a), father must also show that the substantial change in circumstances makes the terms of the current support order unreasonable and unfair.

When a change in circumstances meets the requirements of Minn. Stat. § 518.64, subd. 2(b)(1), there is a presumption that there has been a substantial change in circumstances and a separate rebuttable presumption that the terms of the current support order are unreasonable and unfair. Mother did not need to rebut the presumption that there has been a substantial change in circumstances, she needed to rebut the presumption that the terms of the current support order are unreasonable and unfair.

Under the statute, the emancipation of the oldest child is presumed to be a substantial change in circumstances. But the trial court's clarification of the support order in the decree explains that the current support order requires father to pay $1,000 per month for child support until the parties' youngest child is emancipated. Because the trial court intended the current support order to continue after the oldest child became emancipated, the oldest child's emancipation is not a substantial change that makes the current order unreasonable and unfair.

Father also argues that there was a substantial decrease in his income during the four months after the dissolution because he reduced his income tax exemptions from ten to two. The payroll check stubs that father submitted with his affidavit in support of his modification motion indicate that the amount of income taxes withheld from his pay increased after the dissolution. But the check stubs also indicate that after the dissolution, father began making a $109.15 contribution to a thrift plan. Father offered no evidence that this contribution is deductible from gross income when determining net income for child support purposes.

When the thrift plan contribution is added to the $1,158.97 net pay father received for his biweekly pay period, he has biweekly income of $1,268.12 for child support purposes. Multiplying this amount by 26 establishes a net annual income of $32,971.12 and dividing this annual income by 12 establishes a net monthly income of $2,747.59. In the dissolution decree, and in the order denying the modification motion, the court found that father's net monthly income was $2,600. Father did not demonstrate a substantial decrease in his income that made his support obligation unreasonable and unfair.

Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.