In re the Marriage of: Dana Demaris, petitioner, Respondent, vs. Carey Demaris, Appellant.

In re the Marriage of: Dana Demaris, petitioner, Respondent, vs. Carey Demaris, Appellant. A04-1627, Court of Appeals Unpublished, May 3, 2005. This opinion will be unpublished and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

A04-1627

 

In re the Marriage of: Dana Demaris, petitioner,
Respondent,

vs.

Carey Demaris,
Appellant.

 

Filed May 3, 2005

Reversed and remanded

Peterson, Judge

 

Ramsey County District Court

File No. F3031139

 

Dana Demaris, 9759 Lorraine Carol Way, Lorton, VA  22079 (pro se respondent)

 

Dana L. Mitchell, Mary W. Marrow, 340 Cedar Street, Suite 100, St. Paul, MN  55101 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Peterson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this child-support dispute, appellant-mother argues that the district court erred by not requiring respondent-father to contribute to the child-care and health-insurance costs for the parties' children and in not making the support modification retroactive to either the date she served her motion to modify support or the date father began his current employment.  We reverse and remand.

FACTS

            The parties were divorced in Arizona in December 2001.  The Arizona Superior Court declined jurisdiction over custody because the children were living in Minnesota.  By order filed January 16, 2002, the Ramsey County District Court in Minnesota awarded appellant-mother Carey Demaris sole legal and physical custody of the parties' two minor children.  The custody order reserved the issue of child support.

            By order filed May 8, 2002, the Arizona Superior Court established respondent-father Dana Demaris's child-support obligation at $474 per month and awarded mother retroactive child support to be paid in monthly installments of ten dollars each.  By order filed October 2, 2002, the Arizona Superior Court increased father's monthly child-support obligation to $615 plus the ten-dollar per month payment for retroactive support.  The court found that a substantial and continuing change of circumstances had occurred because "daycare and medical insurance premiums have been added to calculation."  A child-support-guideline worksheet filed the same day showed that mother paid $183 per month for medical insurance and $333 per month for childcare.  The October 2, 2002, order allocated 41% of the monthly medical-insurance-premium costs, uninsured medical costs, and childcare costs to father and 59% of those costs to mother.

            Mother registered the Arizona dissolution judgment in the Ramsey County District Court, and on June 20, 2003, mother brought a motion to increase child support alleging that health-insurance and childcare costs for the children had increased.  Mother requested that child support be based on imputed income because father was employed as a store clerk earning a wage of ten dollars per hour, and he had previously earned more than $35,000 per year working as a pipe fitter.  Father filed a responsive motion seeking a downward modification of child support.

            At the November 2003 hearing on the parties' motions, the district court stated:

[Father] will, in fact, proceed to make a good faith showing of real attempts to find work as a pipe fitter in Rhode Island.  He was ordered by the Arizona court to take steps to earn more money.  For him now to take . . . the position all he can really do is to serve as a clerk, outside of a well-paid craft or employment as a pipe fitter, certainly making more money than a clerk or even a staff person, if you will, doesn't make sense.  There is no showing on the part of [father] that he has any physical or emotional or psychiatric barriers to his getting work as a pipe fitter.

 

                        . . . .

 

            We're going to give [father] six months to make a showing documenting all of the resources, all of the sources that he has actually sought out, with the names, addresses, telephone numbers, contact person in regard to that area of employment.

 

            [Father] is also going to take the necessary steps to apply to the union and submit documentation that he has done that.  He is required to do that within the next 21 days.  As a pipe fitter, he probably has to belong to the union so he can get a job, but I don't want the excuse to come back, Well, I couldn't get a job because I wasn't a member of the union.

 

In January 2004, the district court issued an order reserving the parties' motions for modification of child support and setting the issue of child support for review in six months.

            In November 2003, father moved from Rhode Island to Virginia, where he obtained employment working as a pipe fitter earning $18 per hour.  A letter from father's attorney to the district court states that father was scheduled to begin working at the pipe-fitter job on December 5, 2003.  Father did not join the pipe-fitters union but did submit four letters documenting his efforts to obtain employment through the pipe-fitters union.

            In an order filed July 13, 2004, the district court found that father had made several efforts to contact the union hoping to obtain employment but had been unsuccessful and that mother had failed to prove that father had better-paying job opportunities through the union.  The modification of child support was addressed in an order filed July 28, 2004.  The district court denied mother's request to impute income to father.  Pursuant to the guidelines, the district court awarded mother $716.40 per month, 30% of father's net monthly income, for child support, retroactive to February 13, 2004.  Under the heading "MODIFICATION OF DAY CARE EXPENSES AND NON-REIMBURSED MEDICAL EXPENSES BASED UPON UPWARD OR DOWNWARD DEVIATION FROM THE GUIDELINES," the district court found, "No basis exists in which to grant this relief to [mother]."  Order no. 3 states, "[Mother's] request for modification of day care expenses and non-reimbursed medical expenses based upon a deviation from the guidelines is denied."  In the July 28 order, in the findings and conclusions addressing mother's request for an order requiring father "to pay his share of the non-reimbursed medical expenses incurred on behalf of the minor children within 30 days of the receipt of those expenses," finding and conclusion no. 23 requires father "to reimburse [mother] for all ‘unreimbursed' or ‘uninsured' medical costs incurred for the care of the minor children within 30 days after the tender or submission of those costs by way of identifiable receipts to him."  Order no. 7 states, "[Mother's] request requiring [father] to pay his share of the non-reimbursed medical expenses incurred on behalf of the minor children within 30 days of the receipt of those expenses is granted."

            The district court denied mother's motion for clarification or reconsideration.  This appeal followed.

D E C I S I O N

            A parent seeking modification of a child-support order carries the burden of showing a substantial change of circumstances that makes the existing child-support order unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a)(2) (2002).  The district court has broad discretion to modify child support, and its decision will be reversed only if the district court reached a "clearly erroneous conclusion that is against the logic and the facts on [the] record."  Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999) (quotation omitted).  The district court's discretion, however, is limited by the governing statute.  Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).

I.

            Mother argues that the district court erred in not requiring father to contribute to the costs of childcare and medical and dental expenses and in not assigning or reserving the responsibility for maintaining medical insurance for the children.

Childcare

            Minn. Stat. § 518.551, subd. 5(b) (2002), states:

The court shall review the work-related and education-related child care costs paid and shall allocate the costs to each parent in proportion to each parent's net income, as determined under this subdivision, after the transfer of child support and spousal maintenance, unless the allocation would be substantially unfair to either parent. . . . The court shall require verification of employment or school attendance and documentation of child care expenses from the obligee and the public agency, if applicable.

 

The July 28, 2004, order does not address the allocation of childcare costs.  But the July 28, 2004, order amended the existing October 2, 2002, order, which allocates 41% of the childcare costs to father and 59% to mother.  Because the July 28, 2004, order does not amend the allocation of childcare costs in the October 2002 order, that allocation remains in effect.  But that allocation is not consistent with the parties' current incomes.  The district court found that father's net monthly income is $2,388, and mother's is $2326.67, and the parties do not challenge those findings on appeal.  When the $716.40 child-support payment is subtracted from father's income and added to mother's as required by Minn. Stat. § 518.551, subd. 5(b), mother's net monthly income is $3,043.07, and father's is $1,671.60.  Mother's share of the parties' total net monthly incomes is 65.54%, and father's is 35.46%.  It is possible that the district court concluded that mother paid no childcare costs because, while the evidence shows that mother made arrangements for childcare, the record contains no evidence that mother actually paid for the childcare that she arranged.  Because we cannot tell from the July 28, 2004, order whether the district court concluded that mother paid no childcare costs or whether the court overlooked the requirements of Minn. Stat. § 518.551, subd. 5(b), we remand the issue of the allocation of childcare costs.

Health insurance and uninsured medical and dental costs

Minn. Stat. § 518.171, subd. 1(a)(1) (2002), states, "Every child support order must . . . expressly assign or reserve the responsibility for maintaining medical insurance for the minor children and the division of uninsured medical and dental costs . . . ."

Finding and conclusion no. 23 in the July 28, 2004, order could be construed as requiring father to pay all nonreimbursed medical costs for the children.  But order no. 7 directs father to pay "his share" of those expenses, and finding and conclusion no. 21 also refers to father paying "his share" of nonreimbursed medical expenses.  We, therefore, interpret the order as requiring father to pay a share of uninsured medical costs.

However, the July 28 order does not address what percentage of uninsured medical costs represents father's share and also does not expressly assign or reserve the responsibility for maintaining medical insurance for the minor children.  Therefore, the provisions in the October 2, 2002, order, which assign the responsibility of maintaining medical insurance for the children to mother and require father to pay 41% and mother 59% of uninsured medical and dental expenses and of the monthly medical-insurance-premium cost, remain in effect.  But, as we have already stated, that allocation is inconsistent with the parties' current incomes.  We, therefore, remand the issue of the division of uninsured medical and dental costs.  On remand, the district court may at its discretion consider father's claim that he should be assigned the responsibility of maintaining medical insurance for the minor children.

II.

            Generally, modification of child support "may be made retroactive only with respect to any period during which the petitioning party has pending a motion for modification."  Minn. Stat. § 518.64, subd. 2(d) (2002). The decision to apply a modification retroactively rests within the district court's broad discretion.  Guyer v. Guyer, 587 N.W.2d 856, 859 (Minn. App. 1999), review denied (Minn. Mar. 30, 1999).

            The district court modified support retroactive to February 13, 2004.  Mother argues that support should have been modified retroactive to the date she served her motion on father, June 20, 2003, or, alternatively, to the date father began employment as a pipe fitter, December 5, 2003.

            The district court acted within its discretion in deciding at the November 2003 hearing to allow father six months to join the union and obtain employment as a pipe fitter.  Although father did not join the union, he did obtain employment as a pipe fitter earning $18 per hour, and the district court expressly found credible the evidence that father attempted to obtain employment through the union and was unable to do so and denied mother's motion to impute income to father.  Under these circumstances, the district court did not abuse its discretion in declining to modify support retroactive to June 20, 2003.

            But the district court did not explain why it made support retroactive to February 13, 2004.  Because the reason for choosing that date is not apparent from the record, we
cannot determine whether choosing that date was an abuse of discretion.  We, therefore, reverse the award of retroactive support and remand the issue for reconsideration.

            Reversed and remanded.

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