In re the Marriage of: Rebecca Lynn Hawkes, petitioner, Appellant, vs. Gary Michael Hawkes, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-02-1666

 

In re the Marriage of:

Rebecca Lynn Hawkes, petitioner,

Appellant,

 

vs.

 

Gary Michael Hawkes,

Respondent.

 

Filed May 6, 2003

Affirmed in part and reversed and remanded in part Willis, Judge

 

Anoka County District Court

File No. F4957761

 

Suzanne E. Grandchamp, Robin & Thompson, P.A., 1212 East Wayzata Blvd., Suite 200, Wayzata, MN  55391 (for appellant)

 

Richard J. Schieffer, Anderson Dove Fretland & VanValkenberg PLLP, 5881 Cedar Lake Road, Minneapolis, MN  55416-1492 (for respondent)

 

            Considered and decided by Willis, Presiding Judge, Schumacher, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Mother challenges the district court's order modifying child support retroactively and ordering mother to reimburse father for overpayments.  Mother contends that (1) the district court modified child support retroactively to a date earlier than that allowed by statute, (2) the district court sua sponte modified child support despite the parties' stipulation to mediate support issues, and (3) the district court's ruling was based on an improper ex partecommunication.  Because we conclude that the district court abused its discretion by modifying father's child-support obligation retroactively to a date earlier than that allowed by statute, we affirm in part and reverse and remand in part.

FACTS

            Appellant Rebecca Lynn Hawkes ("mother") and respondent Gary Michael Hawkes ("father") were married in 1984 and had two children, a daughter and a son.  In 1997, the parties' marriage was dissolved, and under the terms of the judgment, the parties shared legal custody of the children, but mother was granted sole physical custody of both children.  Father was ordered to pay child support in the amount of $646.20 per month; by March 2002, the support obligation was $1,018.35 per month as the result of cost-of-living increases.  Between February 1999 and January 2001, the parties' daughter lived intermittently with each party; these changes in living arrangements were consented to by the parties.

            On March 22, 2002, father served mother with a notice of motion and motion to grant him sole physical custody of the daughter and to modify child support to reflect the change of custody.  At a hearing in June 2002, the parties told the court that they had reached agreement on the change of custody and on all other issues except the amount of father's income for the purpose of child support and whether mother owed father for overpayment of support for the time that the daughter lived with him.  Because it appears that the parties then believed the original judgment required them to mediate issues relating to child support, they also told the court that they had agreed to mediate these issues.

            The record suggests that subsequent to the hearing, the parties discovered that the dissolution judgment required mediation only of custody and visitation issues and that they agreed to arrange a conference call with the judge to discuss the unresolved issues.  On June 24, 2002, father's attorney sent mother's attorney a proposed order amending the judgment.  In a cover letter, father's attorney stated that (1) he had spoken with the district judge's clerk to schedule a conference call with the judge as the parties had agreed, (2) he had informed the clerk that the existing judgment did not require mediation of support matters, and (3) the clerk reported back that there would be no conference call and the judge would decide the unresolved issues.  Mother objected to the cancellation of the conference call, asserting that the court had decided to rule on the unresolved issues based on improper ex parte communication between father's attorney and the judge's clerk.  As a result of mother's objection, the conference call ultimately occurred on July 23, 2002.

At the conclusion of the conference call, mother's attorney stated that she would like to confer with mother regarding the proposed order submitted by father.  On July 31, 2002, father sent a letter to the judge, with a copy to mother's attorney, stating that father's attorney had not heard from mother's attorney since the conference call and requesting that the proposed order be entered immediately because father was due to be paid by his employer on August 2, 2002, which, because of automatic withholding, would result in further overpayment of child support. 

The district court signed the order in the form proposed by father on August 1, 2002, and judgment was entered on August 14, 2002.  The amended judgment (1) granted sole physical custody of the daughter to father, (2) modified father's child-support obligation from $1,018.35 to $422.35 monthly, effective July 1, 2002, and (3) ordered mother to reimburse father $10,728 for overpayment of support.  This appeal follows.

D E C I S I O N

I.

 

            We first address father's claim that this court lacks jurisdiction because mother's appeal purports to be from the order for judgment rather than from the judgment itself.  Father argues that because the order amending the judgment ends with a direction that judgment should be entered, this appeal should have been taken from the judgment, not from the order.  The Minnesota Supreme Court expressly rejected this argument in Marzitelli v. City of Little Canada, 582 N.W.2d 904, 906 (Minn. 1998).  Language in an otherwise appealable order directing that judgment be entered does not affect the appealability of the order.  Id.  Because an order that modifies child support is appealable, this court has jurisdiction to hear this appeal.  Minn. R. Civ. App. P. 103.03(h).

II.

It is well settled that district courts enjoy broad discretion in child-support matters.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  This court reviews the district court's decisions in such matters for an abuse of discretion.  Id.  Misapplication of the law is an abuse of discretion.  Couter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S. Ct. 2447, 2461 (1990).

            The amended judgment on its face modified father's support obligation from $1,018.35 per month to $422.35 per month effective on July 1, 2002.  But the amended judgment also ordered mother to reimburse father for monthly support overpayments of $596, the difference between $1,018.35 and $422.35, for the preceding 18 months.  The court thereby effectively modified father's support obligation retroactively to January 2001.  Mother asserts that the district court violated Minn. Stat. § 518.64, subd. 2(d) (2002), by modifying child support retroactively to a date before father served notice of his motion to modify support.

Here, the district court based its order on Minn. Stat. § 518.57, subd. 3 (2002), which provides that

[t]he court may conclude that an obligor has satisfied a child support obligation by providing a home, care, and support for the child while the child is living with the obligor, if the court finds that the child was integrated into the family of the obligor with the consent of the obligee * * * .

 

This section was first adopted in 1991 and is a codification of Karypis v. Karypis, in which this court determined that a father had satisfied his support obligation by providing a home and support for his children and did not owe the mother for unpaid support while the children lived with him.  Karypis v. Karypis, 458 N.W.2d 129, 131 (Minn. App. 1990), review denied (Minn. Sept. 14, 1990).  But section 518.57, subdivision 3, is not a support-modification statute.  Rather, it allows a district court to conclude that under certain circumstances an obligor may satisfy his or her support obligation by providing care, support, and a home for a child.  Minn. Stat. § 518.57, subd. 3; see Karypis, 458 N.W.2d at 131 (concluding that district court's recognition of obligor's satisfaction of child-support obligation by providing care, support, and a home for the children was not a support modification within the meaning of Minn. Stat. § 518.64, subd. 2).  We find no reported case in which section 518.57, subdivision 3, has been used to effect a retroactive modification of a child-support order; rather, it has uniformly been applied to relieve an obligor of the obligation to pay some or all of a claim for arrearages under an existing child-support order.  Here, the court did not use the statute merely to conclude that father had satisfied a portion of the then-existing support order by providing a home for the daughter.  Rather, by ordering "reimbursement of child support overpayments," the district court modified father's child-support obligation retroactively to the date that the court determined that the daughter was integrated into father's family.

Minn. Stat. § 518.64, subd. 2(d), provides that

[a] modification of support or maintenance, including interest that accrued pursuant to section 548.091, may be made retroactive only with respect to any period during which the petitioning party has pending a motion for modification but only from the date of service of notice of the motion on the responding party * * * . 

 

Section 518.64, subdivision 2(d), lists several exceptions to this limitation, none of which applies here.  Id.  In the absence of one of those exceptions, the statute allows a modification of support to be made retroactive to a date no earlier than the date of service of notice of the motion for modification on the responding party.

            Because Minn. Stat. § 518.57, subd. 3, does not provide for modification of child support, we conclude that it was an abuse of discretion for the district court to rely on the statute in modifying support, and because father did not serve notice of his motion to modify support until March 22, 2002, under Minn. Stat. § 518.64, subd. 2(d), it was an abuse of discretion for the district court to order modification retroactively to an earlier date by ordering reimbursement for "overpayments" made since that earlier date.

III.

Mother also argues that by agreeing to mediate the issues of child support and reimbursement, the parties entered into a "stipulation" independent of any requirement of the original dissolution judgment and that the district court erred by disregarding the parties' stipulation.  But the record suggests only that the parties agreed to mediation of support issues when they believed it was required by the judgment, and that when the parties learned that mediation was not required, they agreed to discuss the unresolved issues with the court.  Nothing in the record shows that either party took any action to initiate mediation.  Because there is no inherent right to mediate support matters, the district court did not abuse its discretion by deciding the support and reimbursement issues without mediation by the parties.

IV.

Lastly, mother contends that the district court's order was based on an improper ex parte communication between the court and father's attorney, citing conversations between the district judge's clerk and father's attorney regarding scheduling a conference call.  Canon 3A(7)(a) of the Minnesota Code of Judicial Conduct specifically permits "ex parte communications for scheduling * * * that do not deal with substantive matters or issues on the merits."  Additionally, under Minn. R. Prof. Conduct 3.5(g)(3), an attorney may have ex parte communication with the court upon adequate notice to opposing counsel. 

Here, it is evident that the parties discovered that mediation of child support was not required by the judgment and agreed that father's attorney would contact the court to schedule a conference call to discuss the unresolved issues.  Mother points to no evidence suggesting that the contact related to substantive matters or issues on the merits of the dispute, and did not simply concern scheduling a conference call and informing the court of the fact that mediation of support issues was not required by the judgment.  The communication did not violate either the Code of Judicial Conduct or the Rules of Professional Conduct. Additionally, after mother objected to the court deciding the unresolved issues without the opportunity to be heard, the conference call in fact occurred, and mother's attorney participated.

We affirm the district court's grant of sole physical custody of the daughter to father.  But because we conclude that the district court erred by modifying child support retroactively to a date earlier than that allowed by Minn. Stat. § 518.64, subd. 2(d), we reverse and remand for reconsideration of father's motion to modify child support.  Any modification of child support may be made effective no earlier than March 22, 2002, and any reimbursement of overpayments of child support that the district court might order may not be based on support payments made earlier than the effective date of such a modification.

Affirmed in part and reversed and remanded in part.