In re Gretchen Ann Collver, petitioner, Appellant, v. Kelly Michael Collver, Respondent.

In re Gretchen Ann Collver, petitioner, Appellant, v. Kelly Michael Collver, Respondent. A04-1281, Court of Appeals Unpublished, March 8, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1281

 

 

In re Gretchen Ann Collver, petitioner,

Appellant,

 

v.

 

Kelly Michael Collver,

Respondent.

 

 

Filed March 8, 2005

Reversed and remanded

Huspeni, Judge*

 

 

Anoka County District Court

File No. F3-98-3957

 

 

Mary E. Drummer, Tarrant, Drummer & Liska, 1539 Grand Avenue, St. Paul, MN 55105 (for appellant)

 

David T. Johnson, Post Office Box 241, 217 West James Street, Paynesville, MN 56352 (for respondent)

 

 

            Considered and decided by Halbrooks, Presiding Judge, Huspeni, Judge, and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

            Appellant challenges the district court's conclusion that the child support magistrate (CSM) impermissibly exceeded the scope of remand in its initial order when it concluded that the actions of respondent and his current spouse defined the couple's community to include the Twin Cities metro area (Twin Cities).  This court had previously determined, without the knowledge that respondent's spouse had been commuting to the Twin Cities, that respondent's community for purposes of Minn. Stat. § 518.551, subd. 5(b) (2004), did not include the Twin Cities.  Because evidence presently of record may be substantially different from that before this court when the Twin Cities was deemed not to be respondent's community, reconsideration of that issue is warranted.  To ensure fairness to all parties and to develop a complete record, we remand for the district court to determine respondent's community and his estimated earning ability based on the availability of jobs within that community.

FACTS

In August 2001, the district court ordered respondent Kelly Michael Collver to pay appellant Gretchen Ann Collver $681 per month in child support, $122.47 per month for child-care expenses, and to provide medical insurance for his minor children.  At that time, appellant was living and working in the Twin Cities and earning $17.50 per hour.

In October 2001, respondent moved to Pennock, Minnesotawhich is approximately 100 miles west of the Twin Citiescontending that if he did not move to Pennock, his spouse would divorce him.  After respondent arrived in Pennock, he sought a position in his field of printing, and in February 2002, began working at the Paynesville Press for $10 per hour; subsequently he received a raise to his current salary of $11 per hour.  Respondent's spouse moved to Pennock in March 2002 and obtained employment in Willmar, Minnesota; she left that employment in April 2002 and returned to her job in the Twin Cities while continuing to reside in Pennock. 

In June 2002, respondent sought to modify his child-support obligations, based on his decreased income.  In July 2002, a CSM found that respondent was voluntarily underemployed under Minn. Stat. § 518.551 (2002) and imputed income to him based on the amount he could earn in the Twin Cities$17 per hour.  Respondent's motion to reduce child-support obligations was denied.

Respondent appealed the CSM's determination to this court, arguing that the CSM erred in determining that he was voluntarily underemployed; he argued in the alternative that if he was voluntarily underemployed, Pennock was a different "community" from the Twin Cities under Minn. Stat. § 518.551, subd. 5(b), and his imputed income should be based on the income he was able to earn in Pennock.  It is uncontested that during oral arguments in that appeal, this court asked if there was any information regarding where respondent's spouse was employed.  There was no answer given to that question.[1]  

In June 2003, this court affirmed the determination that respondent was voluntarily underemployed.  Collver v. Collver, No. C2-02-2180, 2003 WL 21500288 (Minn. App. July 1, 2003).  But this court determined the CSM had improperly used the Twin Cities as the community to compute respondent's potential income under Minn. Stat. § 518.551, subd. 5b(d), because "[t]o consider the Twin Cities and a smaller town more than 100 miles away to be in the same ‘community' stretches the common meaning of that term."  Collver, 2003 WL 21500288, at *6.  This court concluded the evidence in the record was insufficient to demonstrate respondent's actual earning potential and remanded with instructions that the CSM "receive additional evidence of [respondent]'s estimated earning ability based on the availability of jobs within his current community."  Id. at *7.

In December 2003, the CSM conducted an evidentiary hearing to address the remand issue.  At the beginning of the hearing, all parties agreed the sole issue before the CSM was "to determine [respondent]'s earning ability, while residing in the [City] of Pennock, Minnesota, based on his actual earning potential in that community of Pennock."  Respondent was the only witness to testify at the hearing.  During cross-examination, appellant's attorney questioned respondent about his spouse's employment.  Respondent admitted that his spouse works in Maplewood, Minnesotalocated in the northeastern area of the Twin Citiesduring the week and returns to Pennock on the weekends.  When asked if he could commute to the Twin Cities as well, respondent stated, "Oh I, I don't know how to answer that.  Umm different circumstances would apply I guess.  I don't, I'm not quite sure how that would play out."  The CSM also questioned whether, in the prior appeal, this court had been informed that respondent's spouse was working in the Twin Cities while residing in Pennock; appellant's attorney stated the information was not provided even though this court had requested information about where respondent's spouse was employed. 

In January 2004, the CSM determined that this court was not aware that respondent's spouse had been commuting to the Twin Cities from Pennock and "believe[d] that the Court of Appeals panel would not have reached the decision it reached if it had been informed of the true circumstances surrounding the [respondent]'s spouse's employment."  The CSM found that respondent

misrepresented the facts of his case, by omission, when he argued that his wages should not be based on Twin Cities' wages because he did not live in that "community," without disclosing that, all the while, his spouse was commuting back and forth to the Twin Cities to work, and she has been doing so for almost two years.

 

The CSM concluded that respondent and his spouse "have defined their ‘community' as including the Twin Cities by her working in the Twin Cities for all but two months since they moved to Pennock."

Respondent sought district court review of the CSM's order, arguing that it exceeded the scope of remand from this court.  The district court, relying on Rooney v. Rooney, 669 N.W.2d 362, 371 (Minn. App. 2003), concluded that the CSM did not have the power to alter, amend, or modify the terms of an appellate remand.  The district court determined that this court held the Twin Cities was not the proper "community" for purposes of imputing income to respondent and concluded that

[t]he magistrate erred, as a matter of law, in considering the employment circumstances of the [respondent]'s wife when determining child support.  The magistrate must consider the scope of the remand from the Court of Appeals as well as Minn. Stat. § 518.551, subd. 5(b)(1) and Minn. Stat. § 518.64, subd. 2(c)(1), which prohibit consideration of the financial circumstances of the spouse (except for expenses).

 

The district court remanded to the CSM for findings and an order consistent with its order.

On remand from the district court, the CSM concluded that the district court's order required it to impute income to respondent based on the wages respondent could make in Pennock and reduced respondent's child-support obligation to the child-support guidelines amount for a monthly income based on that figure.  In making this determination, the CSM noted that, absent the district court's order, it would not alter its prior order and stated,

12.       The undersigned did not consider the financial circumstances of the Respondent's spouse in determining child support, which is prohibited by statute.  Rather, the undersigned considered the location of the Respondent's spouse's employment, only as it related to Respondent's argument that his community did not include the Twin Cities; and the Respondent's and his spouse's relative hourly wages, only as it related to and refuted his argument that it was financially better for Respondent's new family (including his spouse and her children) for his spouse to return to work in the Twin Cities instead of the Respondent. . . .

 

13.       As previously stated, the undersigned believes the record supports the order issued January 8, 2004 and that ignoring the evidence adduced at the remand hearing works an injustice and rewards the act of making misrepresentations to the Court.  However, the undersigned feels constrained by the remand order . . . .

 

(Emphasis in original.)  The CSM modified its earlier order and, based on Pennock wages of $10 per hour, ordered respondent to make child-support payments of $425 per month and to contribute $89 per month for his share of child-care expenses.  Appellant challenges that determination.

D E C I S I O N

            Appellant alleges that the district court erred when it required the CSM to strictly conform to the mandate of this court's previous decision.  Appellant argues that in doing so, the district court forced the CSM to disregard evidence that during the entire time respondent has been arguing that Pennock and the Twin Cities are not the same community, his spouse was working in the Twin Cities while living in Pennock.  The issue is more complex than appellant would argue it to be, however, and the decision of the district court merits careful consideration.  This court, in its June 2003 opinion, remanded the issue of child support to the district court to determine the appropriate amount of income to impute to respondent based on his "current community."  Collver v. Collver, No. C2-02-2180, 2003 WL 21500288, at *6 (Minn. App. July 1, 2003).  It is undisputed that Pennock was considered by this court in its June 2003 opinion to be the "current community."   

            In rejecting the decision of the CSM, which imputed income to respondent based on the Twin Cities being his "community," the district court decided that under Rooney v. Rooney, 669 N.W.2d 362 (Minn. App. 2003), the CSM had exceeded the scope of the remand from this court.  Clearly, the Rooney court recognized the importance of complying with the direction of a reviewing court when it stated, "On remand, a district court must ‘execute [a reviewing court's] mandate strictly according to its terms' and lacks power to ‘alter, amend, or modify [that] mandate.'"  Id. at 371 (quoting Halvorson v. Vill. of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982)).  The Rooney court refused to find that the district court had exceeded the scope of remand, however, and instead found an exception to the general rule of limitation.  669 N.W.2d at 371.  We believe the situation in this case is analogous to that in Rooney and that an exception exists here also.

During the appeal that resulted in this court's June 2003 opinion, the issue was whether Pennock and the Twin Cities were the same community for purposes of Minn. Stat. § 518.551, subd. 5(b) (2004).  During oral arguments in that appeal, there was a question from the bench inquiring about the employment location of respondent's spouse.  No answer was given.  It is undisputed, however, that at the time of that oral argument respondent's spouse was working in the Twin Cities during the week and returning to Pennock on the weekends.  Because of this court's specific question regarding where respondent's spouse was employed, we conclude that an answer that employment was in the Twin Cities might, indeed, have been given substantial[2] weight by this court in making its determination of whether Pennock alone was respondent's community or whether Pennock and the Twin Cities were to be considered the same community.

The circumstances before the district court and the CSM on remand, and those before this court in this appeal, are substantially different from those that existed in this court during the appeal that resulted in the June 2003 opinion.  Therefore, the issue of whether respondent's community, for purposes of Minn. Stat. § 518.551, subd. 5(b), is Pennock or the Twin Cities should be reconsidered. 

It may be argued that this court should exercise its discretion (perhaps reducing the protracted nature of the litigation and the financial and emotional cost to both parties as a result), and on the basis of the record before us reverse the district court and reinstate the decision of the CSM determining respondent's community to be the Twin Cities.  Appellant, in effect, asks for such a result, arguing that respondent purposefully withheld from this court and the district court information regarding the location of his wife's employment and should not be permitted to benefit from that lack of candor.

In support of her argument for reversal, appellant cites Minn. Stat. § 518.145, subd. (2) (2004), and urges that fraud and misrepresentation by a party permits a court sua sponteto reopen a matter and modify an order or judgment.  Appellant's argument raises two concerns, however.  First, on the record before us, we are unable to determine with certainty whether fraud or misrepresentation has, in fact, been committed by respondent.  Second, we cannot read Minn. Stat. § 518.145, subd. (2), as broadly as appellant would wish.  The first words of that section are "on motion."  No motion was made here; the words "sua sponte" do not appear in the statute, and we shall not read them into the statute by implication; nor shall we read out of the statute the words "on motion."  See Baker v. Ploetz, 616 N.W.2d 263, 269 (Minn. 2000) ("A statute should be interpreted, whenever possible, to give effect to all of its provisions, and no word, phrase, or sentence should be deemed superfluous, void, or insignificant." (quotation omitted)).

Although we would prefer to bring this protracted litigation to an end, we conclude that fundamental fairness requires that both parties be given the opportunity to develop the record fully by providing evidence and arguments on the questions "what is respondent's community, and how does the fact that his wife works in the Twin Cities affect the determination of that community?"[3]  Thus, we remand once more to the district court.  In remanding, however, it is not this court's intention to limit the scope of the district court's inquiry into questions that may arise regarding, but not limited to, the ability of respondent to observe an employment schedule similar to that of his wife.[4]

Because we are remanding the issue of respondent's community under Minn. Stat. § 518.551, subd. 5(b), we do not reach the issue of whether the district court erred in determining that the CSM had impermissibly considered the financial circumstances of respondent's spouse in determining respondent's child-support obligations.

Reversed and remanded.

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

[1] The employment status of respondent's spouse was not part of the district court record before this court at the time of that appeal and it is unclear whether respondent's attorney had any knowledge that respondent's spouse had returned to her employment in the Twin Cities.

[2]  See American Heritage College Dictionary 1376 (4th ed. 2002) (defining substantial as "[c]onsiderable in importance, value, degree, amount, or extent").

[3]  We note that the question of where respondent's spouse worked was asked of respondent during cross-examination in a hearing during which he expected, and the parties had agreed, that the only issue would be determination of his earning ability in Pennock.

[4]  On remand, the court may be guided, in part, by Bartl v. Bartl, 497 N.W.2d 295, 299-300 (Minn. App. 1993), which addressed the issue of the degree to which expenses incurred in maintaining employment miles from an obligor's residence are to be considered in determining income available for child support.