In Re the Marriage of: Lola Lawal Ishola, petitioner, Respondent, vs. Taofeek Ishola, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-99-1625

 

In Re the Marriage of:

Lola Lawal Ishola, petitioner,

Respondent,

 

vs.

 

Taofeek Ishola,

Appellant.

 

Filed March 28, 2000

Affirmed in part and remanded

Peterson, Judge

 

Washington County District Court

File No. F998562

 

Taofeek A. Ishola, P.O. Box 65825, St. Paul, MN  55165 (pro se appellant )

 

Lola Lawal Ishola, 863 Lake Ridge Alcove, Woodbury, MN  55129 (pro se respondent)

 

            Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Anderson, Judge. U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a dissolution judgment, appellant-father Taofeek Ishola argues the district court erred by approving a marital termination agreement (MTA) that he did not sign.  Father also argues that (a) the MTA approved by the district court does not accurately reflect the parties' agreement; (b) the district court erred by imposing various provisions to which the parties did not agree; and (c) the MTA's provisions on income, disclosure, and conflict resolution are not supported by the record.  We affirm in part and remand. 

FACTS

            After the parties entered an oral agreement to dissolve their marriage, the district court directed mother to reduce the agreement to writing.  Father did not believe the written version of the agreement accurately reflected the oral agreement and refused to sign it.  Mother signed the document and sent it to the district court, stating father had refused to sign it.  The district court added dispute resolution provisions to it and ordered entry of judgment.  Father then challenged the terms of the writing, alleging it did not accurately reflect the parties' oral agreement.  The district court found that the writing accurately reflected the parties' agreement and that any deviation from the parties' agreement was consistent with the law. 

D E C I S I O N

            1.         Father contends that the district court should have conducted a hearing to determine why he did not sign the written version of the agreement and that the district court's failure to do so shows that it was biased against him.  Because father did not seek to remove the district court judge or cite any authority for his argument, we decline to address the issue.  See Minn. R. Civ. P. 63.02, 63.03 (addressing removal of judge for bias); Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating appellate courts do not address issues or theories not raised in district court); Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (stating allegation of error unsupported by argument or authority "is waived and will not be considered * * * unless prejudicial error is obvious"). 

            Alternatively, father contends that the district court's approval of the MTA violated Minn. R. Gen. Pract. 307(b), which requires "the lawyer" who drafts a written version of an oral stipulation to file a transcript of the stipulation.  It also requires the district court to allow 14 days for objections before entering judgment based on the written version of an oral stipulation.  Here, there were no lawyers involved because the parties were pro se.  Also, due to procedural confusion, father's objections were heard, rejected, and abortively appealed before judgment was entered.  On this record, any failure to satisfy rule 307(b) is not fatal to the district court's ruling. 

            2.         The judgment states that father's child-support and child-care payments continue until the minor children reach age 18, marry, die, or stop attending secondary school.  Father alleges that this is inconsistent with Minn. Stat. § 518.551, subd. 5(b)(2) (Supp. 1999) which states that "the amount allocated for child care expenses terminates when either party notifies the public authority that the child care costs have ended."[1]  Construction of a statute is a legal issue we review de novo.  Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). 

            The district court stated that the written version of the agreement "accurately reflect[s] the status of the law regarding the duration of child support."  The term "child support" may be used narrowly to refer to the amount an obligor pays under the guidelines or more broadly to also refer to child-care costs.  Compare Minn. Stat. § 518.551, subd. 5(b) (child-support guidelines) with Minn. Stat. § 518.54, subd. 4a (1998) (defining "[s]upport order" to include a ruling requiring a party to provide "monetary support, child care, [or] medical support").  In the narrow sense of the term, "child support" continues until children die or are emancipated.  See Minn. Stat. § 518.64, subd. 4a (1998) (addressing duration of child support); Minn. Stat. § 518.54, subd. 2 (1998) (defining "child").  In the broad sense, however, a parent is liable for child-care costs only as long as those costs are actually incurred.  See Minn. Stat. § 518.551, subd. 5(b)(2) (stating child-care expenses automatically terminate when public authority notified child-care costs end). 

            It is not clear in which sense the district court used the term "child support."  If the district court did not intend to refer to father's child-care contribution when it stated that the child-support provision accurately reflected the status of the law, it failed to address father's concern about the duration of his child-care obligation.  Alternatively, if the district court used the term broadly to refer to father's child-care obligation, the district court was incorrect, at least to the degree that its statement referred to father's child-care contribution.  We remand this issue noting that (a) under Minn. Stat. § 518.551, subd. 5(b)(2), child-care contributions do not extend beyond the time the public authority is notified that the costs have ended; (b) under In re Labelle's Trust, 302 Minn. 98, 115-16, 223 N.W.2d 400, 411 (1974) and its progeny, parties may stipulate to something the district court cannot order; and (c) here the district court did not find, and the record does not clearly address, whether these parties agreed father's child-care payments would continue until the children reach 18. 

            3.         Father alleges that he did not agree to a cost-of-living adjustment (COLA) on his child-care contributions.  But, after father said that he did not believe that a COLA was required for child-care contributions and the district court countered it would "make sense" to have one here, father twice responded, "Okay."  Because father agreed to a COLA despite believing it was not required, he waived any objection to that COLA.  See Smith v. Smith, 235 Minn. 412, 421, 51 N.W.2d 276, 281 (1952) (defining waiver as "a voluntary relinquishment of a known right"). 

            4.         Father alleges that the parties agreed that the only future increase in his sub-guideline support obligation can be a COLA and that, because the judgment lacks provisions so stating, there is the potential for a future non-COLA increase in his support obligation.  Any current concern about a possible future misreading of the judgment is premature and we decline to address that issue at this time. 

            5.         Father alleges the district court failed to address his allegations that the written version of the agreement inaccurately recites the parties' incomes and incorrectly states that the parties made a full disclosure before they entered the agreement.  The judgment states that the parties' incomes "as disclosed by them * * * [are] as follows: [listing parties' incomes] ."  Recitations of the parties' claims are not findings of their incomes.  Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989).  The presence of actual findings of the parties' incomes is important.  See Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997) (noting, in maintenance modification context, that stipulated judgment sets baseline circumstances against which claims of changed circumstances are evaluated).  On remand, the district court shall find the parties' incomes. 

            6.         The judgment entered by the district court mandates mediation of visitation disputes.  When father challenged the inclusion of these provisions in the judgment, the district court admitted that the parties' agreement did not address mediation but, citing Minn. Stat. § 518.619 (1998), refused to remove them from the written version of the agreement.  Under Minn. Stat. § 518.1751, subd. 6 (1998), a judicial district may create a system that requires parties to submit visitation disputes to a visitation expediter before making a motion to modify visitation.  The record, however, does not indicate whether the Tenth Judicial District has a mandatory visitation-expediter program.  On remand the district court shall address this omission and make any necessary adjustments in the judgment's visitation-mediation provisions.

            7.         We express no opinion about how to resolve the remanded issues.  Also, on remand, whether to reopen the record shall be discretionary with the district court.

            Affirmed in part and remanded.

[1] The quoted language does not appear in Minn. Stat. § 518.641 (1998), the section cited by father.