Jennifer Lynn Storm, petitioner, Appellant, vs. Kenneth Anthony Siwek, 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This opinion will be unpublished and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

C4-03-280

 

 

Jennifer Lynn Storm, petitioner,

Appellant,

 

vs.

 

Kenneth Anthony Siwek,

Respondent.

 

 

Filed July 8, 2003 Affirmed in part and reversed in part; motions denied Parker, Judge*

 

 

Hennepin County District Court

File No. PA 15293

 

 

Allen H. Gibas, Allen H. Gibas, P.A., 1422 West Lake Street, Suite 320, Minneapolis, MN  55408 (for appellant)

 

Jennifer Duchscherer, Brian J. Clausen, Carlson & Soldo, P.L.L.P., 420 Summit Avenue, Suite 300, St. Paul, MN  55102 (for respondent)

 

 

            Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

            These unmarried parties had a child and later, appellant mother unsuccessfully sought various relief from respondent father.  On appeal, mother argues (a) because mother is the custodial parent, federal law requires that she be awarded the tax-dependency exemption; (b) the court erred by denying her claim for retroactive modification and reimbursement of uninsured medical and dental expenses; (c) the record does not support the denial of mother's request for attorney fees or the award to father of attorney fees; and (d) the district court should have granted mother's motion to reconsider.  We affirm in part and reverse in part.

D E C I S I O N

            Dependency exemption award

            Appellant argues that the Internal Revenue Code (IRC), rather than state law, controls whether a taxpayer is entitled to claim another as a dependent for income tax purposes.  "A reviewing court must generally consider ‘only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.'"  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (citation omitted).  Nor may a party obtain review by raising the same general issue litigated below but under a different theory.  Pomush v. McGroarty, 285 N.W.2d 91, 93 (Minn. 1979).

            Appellant submitted a letter to the district court requesting leave to file a motion to reconsider pursuant to Minn. R. Gen. Pract. 115.11.  The district court denied the request and stated the request should be directed to the child support magistrate (CSM).  Appellant subsequently submitted the request to the CSM, who also denied the request.  Appellant admits this issue was first raised in her motion to reconsider.  Nevertheless, appellant contends that by raising the theory in her request for reconsideration, before an appeal was filed, the district court properly considered the issue when it denied appellant's request.

            A motion for reconsideration does not expand or supplement the record on appeal.  Sullivan v. Spot Weld, Inc., 560 N.W.2d 712, 716 (Minn. App. 1997), review denied (Minn. Apr. 24, 1997).  Motions for reconsideration are not opportunities for presentation of facts or arguments available when the prior motion was considered.  Minn. R. Gen. Pract. 115.11.  There is nothing in the file demonstrating that appellant argued this theory prior to submitting her request to reconsider.  Both the district court and the CSM denied appellant's request to reconsider the issue based on appellant's new theory.  This court must consider only those issues that the record shows were presented and considered by the trial court.  Thiele, 425 N.W.2d at 582.  We conclude that appellant's new theory concerning the applicability of the IRC was not properly before the district court and thus cannot be reviewed on appeal.

Appellant also contends that respondent is not entitled to the tax exemption because form 8332 expired on October 31, 1990, and because appellant received no separate consideration for signing form 8332.  The district court found that appellant voluntarily signed form 8332 agreeing not to claim an exemption for the minor child for the calendar year 1987.  She also voluntarily signed the form agreeing not to claim an exemption for the minor child for all future years.  The court noted that respondent is paying a substantial amount in child support to appellant.  Although we find appellant's argument regarding the lack of consideration colorable, she failed to cite any caselaw in support of her claim.  The parties made an agreement and the district court found no reason to nullify the agreement.  We agree with this reasoning that, regardless of the form used, there is no basis to void the parties' agreement.  Therefore, we affirm the district court's award of the dependency exemption to respondent.

Retroactive modification and reimbursement of uninsured medical expenses

            Appellant argues the district court erred by denying her claim for retroactive modification and reimbursement of uninsured medical and dental expenses.  A past support determination by a district court is reviewed for abuse of discretion. McNeal v. Swain, 477 N.W.2d 531, 533-34 (Minn. App. 1991).  A district court's decision regarding medical-expense support is also reviewed under an abuse of discretion standard. Casper v. Casper, 593 N.W.2d 709, 714 (Minn. App. 1999).  The general rule in Minnesota is that where no prior order to pay child support exists, it is improper to give a support order retroactive effect.  Paulson v. Paulson, 381 N.W.2d 53, 55 (Minn. App. 1986).

            Appellant argues that Minn. Stat. § 518.171 (2002) requires respondent to contribute to the medical/dental expenses of his daughter, and that under Minn. Stat. § 257.66, subd. 4 (2002), she is entitled to two years of retroactive medical support.  Minn. Stat. § 257.66, subd. 4, provides:

The court shall limit the parent's liability for past support of the child to the proportion of the expenses the court deems just, which were incurred in the two years immediately preceding the commencement of the action.

 

Although the statutory language states that the parent's liability for past support of a child is limited to a proportion that "the court deems just," retroactive relief is not required under that statute.  Id.  The court determined it was "just" to deny appellant's request in its entirety.  Appellant has known for over 14 years that respondent was not ordered to pay a portion of unreimbursed medical and dental expenses.  Appellant could have moved the court at any time to address the unreimbursed medical and dental expenses.  She did not, and now the child is approximately 17 years old.  The district court did not abuse discretion by denying appellant's request for retroactive support.

            Appellant also contends that the district court abused discretion by failing to award her reimbursement for medical and dental expenses. Appellant had sought reimbursement for respondent's share of the medical and dental expenses incurred and paid on behalf of the child by appellant.  Appellant argues that during the course of the hearing, respondent repeatedly conceded that he was obligated to pay certain amounts of appellant's claims for reimbursement.  Appellant claims the court ignored these obvious concessions by respondent, and therefore abused discretion by failing to award appellant reimbursements for those medical and dental expenses.

            A review of the record reveals that appellant has misconstrued respondent's position.  Respondent did not concede to any of the expenses appellant claimed respondent should pay.  Although respondent's affidavit addressed each of appellant's 19 exhibits, his discussion was an attempt to explain to the court his understanding of the exhibits and any amount for which he could be held liable should the court decide he was responsible for the expenses.  The court found that respondent was under no obligation to pay a portion of past unreimbursed medical and dental expenses incurred prior to July 1, 2002.  We find no abuse of discretion, and the district court did not err by denying appellant's request for reimbursement of uninsured medical and dental expenses.

            Attorney fees as a sanction

            Appellant argues that the district court abused discretion by failing to award attorney fees to appellant, and by awarding attorney fees against appellant as a sanction.  The decision to award attorney fees "rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion."  Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987).  Conduct-based fees must be based on behavior occurring during the litigation and the court must identify the specific conduct on which it bases the fees.  Geske v. Marcolina, 624 N.W.2d 813, 819 (Minn. App. 2001). 

            The district court found that appellant acted in bad faith by continuing to claim the minor child as tax exemption even though she knew respondent was also claiming the child based on the parties' agreement.  The court also stated that appellant failed to provide any credible legal ground for relief.  We disagree.  Because we find appellant's argument that respondent is not entitled to the tax exemption because she received no separate consideration for signing form 8332 to be colorable, we reverse and vacate the award of $500 in conduct-based attorney fees to respondent.

            Motion to reconsider

            Finally, appellant argues the district court erred by denying her request to reconsider and in directing the request to the CSM.  "Motions to reconsider are prohibited except by express permission of the court, which will be granted only upon a showing of compelling circumstances."  Minn. R. Gen. Pract. 115.11.  The district court has discretion to hear a motion for reconsideration, and this court will not reverse unless it is shown that the district court has abused discretion.

            A request to reconsider is intended to be decided by the judicial officer who initially considered the case.  The rules of the district court allow district court judges to refer requests to reconsider to the CSM who heard the matter.  We conclude that the district court did not abuse discretion by denying appellant's request to reconsider and by directing the request to the CSM.  This procedure furthers the policy of efficient allocation of limited judicial resources.

            Both appellant and respondent moved for attorney fees on appeal.  In addition, respondent moved to strike the reply by appellant as untimely, and appellant moved to accept the late reply.  We deny both parties' motions for attorney fees and decline to strike appellant's reply.

            Affirmed in part and reversed in part; motions denied.

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