FLCS No. 118: Week Ending December 4, 2009

The Minnesota Supreme Court issued an opinion this week explaining how pension benefits are to be included in calculating an obligor's income for maintenance purposes (Lee v. Lee). The Court of Appeals also released six opinions, including a published decision interpreting the parenting-expense adjustment provision of Minn. Stat § 518A.39, subd. 2. (Hesse v. Hesse). The five unpublished opinions included decisions affirming modification of a child support obligation (Grossman v. Grossman), affirming a retroactive child support order (Barrett v. Barrett), affirming adjudication of CHIPS (Welfare of the Children of A.M.S. and J.W.S.), affirming in-kind division of marital property (Vitamin v. Gordin), and affirming termination of maintenance (Banas v. Banas).

From last week's holiday release, the Court of Appeals released three unpublished family law decisions, including cases affirming a custody modification (Khan v. Ansar), affirming custody and child support determinations (Owen v. Owen), and affirming in part and reversing in part adjudication of CHIPS (Welfare of the Children of D.J.E., R.R.E., and D.V.V.).

Supreme Court Opinions (1)

• Lee v. Lee Appellant-wife contested the appellate court’s decision to reverse the district court’s maintenance modification, and to eliminate respondent-husband’s maintenance obligation altogether. The supreme court affirmed in part, reversed in part, and remanded to the district court for further factual findings.
  
  During the parties’ marriage, respondent worked as an electrician and appellant was a homemaker. Upon their divorce in 1993, respondent was ordered to pay appellant $650 in monthly maintenance. The district court also split income from respondent’s pension between the parties. After several other stints in court, the order immediately preceding this action required respondent to pay $825 in monthly maintenance, and split respondent’s pension benefits earned during the marriage evenly between the parties, such that each party received $795 per month. On July 1, 2005, respondent retired and moved to terminate his maintenance obligation. The district court denied this motion and determined that, based on the parties’ incomes and expenses, respondent should pay $700 in monthly maintenance and secure this amount with a life insurance policy. The district court made its order retroactive to May 1, 2006. Respondent appealed, and the appellate court reversed, eliminating respondent’s obligation entirely retroactive to the date he originally moved to terminate maintenance.
  
  On appeal, appellant first argued that the appellate court erred in determining which funds from respondent’s pension should be included as part of his income. The supreme court agreed in part, specifically finding that benefits earned prior to the parties’ marriage should be included in respondent’s income because under Minn. Stat. § 518A.39 subd. 2, an obligor’s income for maintenance purposes is based on “gross income,” and under Minn. Stat. § 518A.29, gross income includes pension payments. The supreme court also found that the appellate court erred by excluding post-marital pension benefits from respondent’s income because only $795 of that was specifically awarded to him as non-marital property. However, the district court affirmed the appellate court’s conclusion that property from the pension plan previously awarded to respondent—specifically the $795—should not be included in his income for maintenance purposes. Having determined the proper pension benefits to be included in respondent’s income for purposes of calculating maintenance, the supreme court noted that the district court’s maintenance award of $700 per month was unsupported by the record because the amount exceeded appellant’s reasonable needs. The supreme court also explained that, while the district court has discretion to determine the date at which retroactive maintenance will apply, the district court did not provide any findings supporting its retroactivity date of May 1, 2006. The supreme court therefore remanded the case to the district court to make factual findings consistent with its opinion.

  Full Opinion 

Court of Appeals Opinions (9)

• Hesse v. Hesse Appellant-mother disputed the district court’s decision reducing respondent-father’s child support obligation in light of the fact that he had roughly equal parenting time. The appellate court affirmed because the district court did not misinterpret the parenting-expense adjustment statute. (Meeker County, Judge Child Support Magistrate Kevin Holden)
  
  Upon dissolution, the parties received joint legal custody of their two minor children. Appellant received sole physical custody, subject to respondent’s significant parenting time. The parties’ dissolution judgment contained a parenting time schedule, under which appellant received the majority of parenting time between Easter and Christmas, and respondent received the majority of time between Christmas and Easter. The parties both had the option for two weeks of uninterrupted parenting time during the children’s summer vacation. However, since the judgment has been in place, respondent has not exercised his two weeks of uninterrupted parenting time. In February 2008, Minn. Stat § 518A.39, subd. 2 revised the child support guidelines and provided for a parenting-expense adjustment. Under this statute, if parenting time is between 45.1% and 50%, parenting time is presumed equal. Respondent moved to reduce his child support obligation under this statute, and the district court granted the motion.
  
  On appeal, appellant first argued that the district court erred by calculating respondent’s parenting time as between 45.1% and 50%. The appellate court disagreed, explaining that though the Easter holiday made respondent’s parenting time slightly less during one year, the average was greater than 45.1%. Appellant next argued that the district court’s parenting time calculation was incorrect because respondent failed to actually utilize the two weeks of uninterrupted parenting time to which he was entitled. The appellate court again disagreed, holding that the proper basis for determining parenting time under the clear language of Minn. Stat. § 518A.39, subd. 2 is the amount of time awarded in the parties’ parenting time order, not how much time is actually used.

  Full Opinion

• Banas v. Banas (Unpublished) Appellant-wife challenged the district court’s decision terminating her spousal maintenance award and declining to open the record on remand. The appellate court affirmed because the district court did not abuse its discretion. The appellate court also granted appellant’s motion to expedite release of its opinion. (Stearns County, Judge Vicki E. Landwehr)
  
  The parties were married in Poland. During their marriage, respondent-husband worked as a physician earning approximately $90,000 per year. Upon dissolution, respondent was ordered to pay maintenance. He subsequently was impaired from working because of bipolar disorder, and his income fell dramatically. Simultaneously, appellant went back to school and gained sporadic employment. However, she later abandoned the course of her schooling and sought work as an artist. Respondent moved to terminate his maintenance obligation based on changed circumstances, and appellant did not respond to the motion. The district court entered judgment for respondent, which was reversed for further findings on appeal. On remand, the district court again granted respondent’s motion to terminate maintenance.
  
  On appeal, appellant first argued that the district court erred by refusing to reopen the record in which respondent’s motion to terminate maintenance was granted. The appellate court disagreed, explaining that the district court made sufficient findings justifying its decision not to reopen the record. Appellant next argued that the district court abused its discretion by terminating respondent’s maintenance obligation. The appellate court again affirmed, finding that respondent’s impaired employment and consequential decreased income constituted a substantial change in circumstances rendering his initial maintenance obligation unfair.

  Full Opinion

• Barrett v. Barrett (Unpublished) Appellant-father challenged several aspects of the district court’s order requiring him to pay retroactive child support, denying his motion to modify custody, and denying his application to reinstate his driver’s license. The appellate court affirmed because the district court acted within its discretion. (Anoka County, Judge Douglas B. Meslow)
  
  Upon dissolution, appellant and respondent-mother stipulated to temporary custody and child support. The district court subsequently found that the parties were unable to cooperate with one another as joint custody would require, and awarded sole legal and physical custody to respondent, subject to appellant’s parenting time. The district court also ordered that appellant pay child support. Appellant then engaged in “unsuccessful, almost-nonstop litigation” challenging the district court’s dissolution judgment. Appellant lost his job and failed to make child support payments. Due to the amount of arrearages owed, appellant served time for contempt and had his driver’s license rescinded. In the present proceeding, appellant made dozens of claims, including that the district court erred by ordering him to pay approximately $75,000 in child support arrearages, by refusing to modify custody, and by refusing to reinstate his driver’s license.
  
  On appeal, the appellate court noted that most of appellant’s arguments seemed to derive from the fact that appellant felt he was treated unfairly by the courts. First, the appellate court rejected appellant’s motion to modify custody on grounds that ample findings supported the district court’s custody placement and appellant did not prove a substantial change in circumstances rendering that placement unreasonable or unfair. Second, the district court affirmed the district court’s child support determination because the award was within the district court’s discretion. Finally, the district court affirmed the district court’s decision not to reinstate appellant’s driver’s license due to the substantial amount of support arrearages he owed.

  Full Opinion

• Grossman v. Grossman (Unpublished) Appellant-father challenged the district court’s order modifying his child support obligation to respondent-mother and denying his motion to admit an expert affidavit about his finances. The appellate court largely affirmed, but modified the date to which appellant’s support obligation would be retroactive. (Hennepin County, Judge Jeannice M. Reding)
  
  Respondent moved to increase appellant’s child support obligation sometime in April 2007. The district court reserved the issue twice, and both parties submitted discovery requests. Respondent sought financial information from appellant, but he did not respond to her requests until a few days before trial, when he sought to introduce an expert witness. Appellant also failed to provide information about his income, and the district court therefore imputed income to him based on appellant’s extreme cash flow and exorbitant lifestyle. The district court modified appellant’s child support obligation and set it retroactive to April 2007.
  
  On appeal, appellant first challenged the retroactivity of his support obligation. While agreeing that the award should be retroactive, the appellate court modified the date of retroactivity to May 1, 2007, because respondent’s suit had not been pending throughout the month of April. Appellant next argued that the district court abused its discretion by imputing income to him for child support purposes. The appellate court disagreed and affirmed the support obligation, finding that the record amply supported that appellant was living a lavish lifestyle that his children deserved to benefit from. Finally, appellant argued that the district court erred by disallowing him from presenting an expert affidavit. The appellate court again disagreed, finding that appellant could not offer the affidavit because he failed to respond to respondent’s discovery requests.

  Full Opinion

• Khan v. Ansar (Unpublished) Appellant-father challenged the district court’s order modifying his custody arrangement with respondent-wife and requiring him to pay conduct-based attorneys’ fees. The appellate court affirmed because the record amply supported the district court’s findings. (Dakota County, Judge ***FLCS Judge TE***)
  
  At the time of dissolution, the parties were awarded joint legal custody of their child, and respondent received sole physical custody. A parenting consultant helped the parties settle their contentious and ongoing parenting disputes. In January 2008, the district court granted an HRO preventing appellant from engaging in harassing behavior toward appellant. Respondent was awarded sole legal and physical custody of the child during that time. Appellant appealed this decision previously, and on remand, the district court affirmed its custody modification and ordered respondent to pay appellant attorneys’ fees, due to respondent’s frivolous motions that delayed and increased expenses associated with the legal proceedings.
  
  On appeal, appellant first challenged the district court’s custody modification and many evidentiary rulings that supported the modification. The appellate court affirmed, noting that the district court made extensive findings and that the record strongly supported the district court’s decision that the parties were completely unable to cooperate with one another, and joint custody was not in the child’s best interests. The appellate court also affirmed the underlying evidentiary rulings, finding that appellant was really attempting to attack the district court’s credibility judgments, which were not clearly erroneous. Appellant next argued that the district court erred by ordering him to pay respondent attorneys’ fees. The appellate court again affirmed, noting that while the record was unclear about the reasons for some of the fees, there was enough evidence of appellant’s improper conduct to sustain the award.

  Full Opinion

• Owen v. Owen (Unpublished) Appellant-mother disputed the district court’s order granting sole physical custody of her children to respondent-father and requiring her to pay child support in accordance with the guideline amounts. The appellate court affirmed because the district court acted within its discretion. (McLeod County, Judge ***FLCS Judge TE***)
  
  The parties have three children together. During the parties’ marriage, appellant was the children’s primary caregiver. Upon dissolution, both parties sought joint legal custody, but each wanted sole physical custody. The district court considered all of the statutory best-interests findings and concluded that it was in the children’s best interests for respondent to have sole physical custody because, among other things, respondent lacked the ability to place her children’s needs first and had an unstable living situation. The district court also found that appellant was voluntarily unemployed and imputed income to her as part of an order that she pay respondent monthly child support.
  
  On appeal, appellant first challenged the district court’s decision to award respondent with sole physical custody. The appellate court affirmed, finding that the district court made substantial best-interests findings and that these findings were sufficiently supported by the evidence. Appellant next argued that the district court abused its discretion by imputing income to her and ordering her to pay child support. The appellate court again affirmed, noting that the district court may impute income to a parent even without a finding that the parent is not unemployed in bad faith, and that the district court did not err in calculating the amount of appellant’s obligation.

  Full Opinion

• Vitamin v. Gordin (Unpublished) Appellant-wife contested the district court’s property division in her divorce from respondent-husband. The appellate court affirmed because the district court did not abuse its discretion in dividing the property. (Stearns County, Judge Vicki E. Landwehr)
  
  Respondent purchased the home that the parties lived in prior to the parties’ marriage. During the parties’ marriage, appellant worked as a self-employed clothing designer and respondent worked as a self-employed artist. Upon dissolution, appellant was awarded sole physical custody of the parties’ child, and both spouses agreed to waive maintenance. In dividing the parties’ property, the district court found that the homestead was respondent’s nonmarital property because it was purchased and maintained with nonmarital funds. The district court also decided to make an in-kind distribution for dividing the marital artwork between the parties.
  
  On appeal, appellant first challenged the district court’s classification of the homestead as respondent’s nonmarital property. The appellate court affirmed, holding that the district court’s findings that respondent purchased and maintained the home with nonmarital funds were not clearly erroneous. Appellant next argued that the district court abused its discretion by dividing the marital artwork via an in-kind distribution. Again the appellate court affirmed, explaining that the district court’s decision to award one-half of the marital artwork to each party was supported by the record.

  Full Opinion

• Welfare of the Children of A.M.S. and J.W.S. (Unpublished) Appellant-mother disputed the district court’s order adjudicating her children CHIPS. The appellate court affirmed because the district court’s decision was supported by clear and convincing evidence. (Sherburne County, Judge Karla F. Hancock)
  
  Appellant has two daughters. In January 2009, the elder daughter was driving the younger daughter home, and when they arrived home, the younger daughter reported to appellant that the elder daughter was speeding. The elder daughter testified that appellant became extremely upset and hit her several times, kicked her, punched her, and pinned her against the door so that she was choking. The younger daughter, who had been in and out of the room where the altercation occurred, corroborated some of this story. The county moved to adjudicate the children CHIPS after a school social worker noticed the elder daughter’s injuries and reported the abuse. The district court adjudicated both daughters CHIPS, based on the statutory grounds that the elder daughter suffered abuse from appellant and that the younger daughter resided with an abuser.
  
  On appeal, appellant argued that the record does not support the district court’s conclusion that she physically abused her daughter. The appellate court disagreed, finding that the district court is entitled to make credibility determinations, and could have determined that the children were CHIPS on the basis of the elder daughter’s testimony alone.

  Full Opinion

• Welfare of the Children of D.J.E., R.R.E., and D.V.V. (Unpublished) Appellant-stepfather contested the district court’s determination that his step-daughter and step-son are CHIPS. The appellate court affirmed the CHIPS determination regarding the step-daughter, but reversed and remanded the determination regarding the step-son. (Itasca County, Judge ***FLCS Judge TE***)
  
  Appellant was previously married to the children in question’s mother, and he was granted physical custody of the children when he and their mother divorced. In January 2009, the step-daughter reported to a school guidance counselor that appellant had sexually abused her on multiple occasions. The county moved to adjudicate the step-daughter a CHIPS on grounds of abuse, and to adjudicate the step-son a CHIPS on grounds that he resided with a perpetrator of abuse. The step-daughter testified at trial, and the district court found her credible. Based largely on the step-daughter’s testimony, the district court adjudicated both her and the step-son CHIPS.

  Full Opinion