In Re the Marriage of: Ann Burt, n/k/a Ann Loscheider, petitioner, Respondent, vs. Marvin Burt, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-99-1901

 

 

In Re the Marriage of:

Ann Burt, n/k/a Ann Loscheider,

petitioner,

Respondent,

 

vs.

 

Marvin Burt,

Appellant.

 

 

Filed May 2, 2000

Reversed and remanded
Foley, Judge
*

 

Itasca County District Court

File No. FX85397

 

 

Ann Loscheider, 714 NE Third Ave., Grand Rapids, MN  55844 (pro se respondent)

 

Ellen Elizabeth Tholen, Ellen E. Tholen Law Office, 525 East Itasca St., Suite 103, Grand Rapids, MN  55744 (for appellant)

 

Considered and decided by Amundson, Presiding Judge, Randall, Judge, and Foley, Judge.


U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant Marvin Burt alleges that the child support magistrate incorrectly ruled that respondent Ann Burt, n/k/a Ann Loscheider, did not owe him child support for a period when their child lived with him and that this error caused the magistrate to improperly conclude that his request for relief was moot.  We reverse and remand. 

FACTS

            The stipulated judgment dissolving the parties' marriage awarded respondent custody of their child.  An April 1995 district court order recognized the parties' agreement that the child would live with appellant and that respondent's support obligation would be reserved.  The child moved in with appellant in June 1995, but moved back in with respondent on May 1, 1998.  A district court order recognized this move in a November 1998 order that reserved jurisdiction over support, among other things.  In June 1999, an administrative law judge (ALJ) issued an order setting appellant's support obligation and ruling that respondent owed him $8,113 for support during the period the child lived with him.  Appellant sought amended findings, alleging he had newly discovered evidence about respondent's income.  In July, the ALJ became a child support magistrate.  In August, the magistrate (1) ruled that the "de facto" change of custody causing appellant to have custody from June 1995 through April 1998 did not create a support obligation for respondent, (2) struck the relevant provisions from the June order, and (3) ruled that appellant's requests for relief were moot.  Because respondent did not file a brief, this court issued an order stating that the appeal would be decided on the merits under Minn. R. Civ. App. P. 142.03. 

D E C I S I O N

            1.         The portion of the child support magistrate's order removing respondent's obligation to pay support to appellant for the period when the child lived with him states:

The de facto change of custody to [appellant] for the period 6/1/95 through 4/30/98 did not automatically serve to trigger a support obligation in [respondent].  The [ALJ], now Child Support Magistrate, erred as a matter of law when ordering [mother] to pay support to [father] for that period. 

 

The term "de facto change in custody" generally refers to a change in a child's custodial arrangement that is not approved by the court.  E.g., In re Custody of E.A.Q.D., 405 N.W.2d 262, 264 (Minn. App. 1987) (persons who had "de facto custody of these children for the past six or seven years and who, in all probability, have become their primary caretakers" had standing to seek permanent custody).  Here, however, (1) the April 1995 order awarded appellant custody of the child; (2) the child moved in with appellant in June 1995; (3) the child moved back in with respondent on May 1, 1998; (4) the November 1998 order awarded respondent custody of the child, retroactive to May 1, 1998; and (5) both the April 1995 and the November 1998 orders reserved respondent's support obligation.  Thus, here, the court approved both of the custody modifications and each approval reserved respondent's child support obligation.  This case did not involve a purely "de facto" change in custody and we reverse the magistrate's ruling to the contrary.

            2.         Because we reverse the ruling that this case involves a merely "de facto" change in custody and because that was the basis for the magistrate's refusal to order respondent to pay support to appellant, we remand the question of her support obligation. Our remand is consistent with case law holding that a mother has the obligation to support her children if she is able to do so.  E.g., Mund v. Mund, 252 Minn. 442, 445, 90 N.W.2d 309, 312 (1958) ("the obligation of parents to support their children derives from the legal and natural duty as members of society to take care of [the children] until they are old enough to take care of themselves") (citations omitted); Murphy v. Murphy, 574 N.W.2d 77, 82 (Minn. App. 1998) (state has compelling interest to assure that parents are primary source of support for their children and that state's interest to do so is "grounded on moral, legal, and statutory obligations") (citing authorities).  We note that when, as here, support is reserved, the party seeking support need not show a substantial change in circumstances under Minn. Stat. § 518.64 (1998).  Warner v. Warner, 391 N.W.2d 870, 873 (Minn. App. 1986). 

            3.         The magistrate ruled that appellant's request for relief was moot because respondent did not owe appellant a support obligation.  Because we remand the question of respondent's support obligation, we also remand appellant's requests for relief. 

            4.         Whether to reopen the record on remand shall be discretionary.  We express no opinion on how to resolve the remanded issues. 

            Reversed and remanded. 

 


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