In re the Marriage of: Michael Nicolai Ohnstad, petitioner, Appellant, vs. Leilani L. Ohnstad, Respondent, and County of Rice, intervenor, Respondent.

In re the Marriage of: Michael Nicolai Ohnstad, petitioner, Appellant, vs. Leilani L. Ohnstad, Respondent, and County of Rice, intervenor, Respondent. A05-2321, Court of Appeals Unpublished, September 12, 2006.

This opinion will be unpublished and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

A05-2321

 

In re the Marriage of:

Michael Nicolai Ohnstad, petitioner,

Appellant,

 

vs.

 

Leilani L. Ohnstad,

Respondent,

 

and

 

County of Rice, intervenor,

Respondent

 

Filed September 12, 2006

Reversed and remanded
Klaphake, Judge

 

Rice County District Court

File No. F6-96-1408

 

Michael Ohnstad, 416 Fourth Street NW, #4, Rochester, MN  55901 (pro se appellant)

 

Leilani L. Ohnstad, 205 1st Street North, Waterville, MN  56096 (pro se respondent)

 

G. Paul Beaumaster, Rice County Attorney, Kari C. Pflaum, Assistant County Attorney, 218 Third Street, N.W., Faribault, MN  55021 (for respondent Rice County)

 

            Considered and decided by Klaphake, Presiding Judge, Minge, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Michael Ohnstad appeals pro se from a decision issued by a child support magistrate suspending his driver's license for nonpayment of child support arrears under Minn. Stat. § 518.551, subd. 13 (2004).  He argues that he has no ongoing child support obligation because his children are emancipated and that intervenor County of Rice has failed to fully credit him for payments he made since his child support was set in 1999.  Appellant further argues that due to his medical problems, he is unable to work and lacks the ability to pay child support.  Appellant's ex-wife, respondent Leilani Ohnstad, has not filed a brief in this matter.

            Because the magistrate failed to consider whether the payment agreement proposed by the county was reasonable and tailored to appellant's individual financial circumstances, as required by Minn. Stat. § 518.553 (2004), we reverse and remand for further proceedings consistent with this opinion.

D E C I S I O N

            On appeal from a final order issued by a child support magistrate, this court considers whether the magistrate has abused his or her discretion by improperly applying the law to the facts.  County of Anoka ex rel. Hassan v. Roba, 690 N.W.2d 322, 324 (Minn. App. 2004).  Determinations of past-due support are reviewed under an abuse of discretion standard.  LaChapelle v. Mitten, 607 N.W.2d 151, 166 (Minn. App. 2002), review denied (Minn. May 16, 2000).

            A child support magistrate may direct the commissioner of public safety to suspend the driver's license of a child support obligor who is in arrears "in an amount equal to or greater than three times the obligor's total monthly support . . . payments" and who is not in "compliance with a written payment agreement pursuant to section 518.553."  Minn. Stat. § 518.551, subd. 13(b) (2004).  When proposing or approving a payment agreement, a magistrate "shall take into consideration the amount of the arrearages, the amount of the current support order, any pending request for modification, and the earnings of the obligor."  Minn. Stat. § 518.553 (2004).  The magistrate must consider the "individual financial circumstances of each obligor in evaluating the obligor's ability to pay any proposed payment agreement and shall propose a reasonable payment agreement tailored to the individual financial circumstances of each obligor."  Id.

            Here, the magistrate found that appellant was ordered to pay continuing child support of $172 per month, that he has an arrearage of "court ordered child support payments in an amount equal to or greater than three times [his] total monthly payments," and that he "has not executed and is not in compliance with a written payment agreement regarding both current support and arrearages."  While the magistrate encouraged appellant to enter into a payment agreement with the county, an agreement was not reached at the hearing because appellant claimed that the $128 per month requested by the county was too high considering his medical problems and inability to work.  But the record fails to show that either the county or the magistrate considered appellant's individual financial circumstances or that the proposal offered by the county was reasonable.  We therefore reverse and remand for further proceedings in which the parties must attempt to reach a payment agreement that meets the requirements of Minn. Stat. § 518.553.

            Finally, we note that appellant appears to challenge the county's calculation of the amounts owed by him.  He refers to the 1999 judgment entered against him for $9,307 to reimburse the state for public assistance received on the children's behalf.  This judgment is final and is no longer subject to challenge by appellant.  In addition, while appellant has made partial payments on his child support obligation and on this judgment, interest continues to accrue on the remaining balances.  On remand, the amounts owed on each balance should be separately identified and any proposed payment agreement should set out the amounts to be paid on each balance.

            Reversed and remanded.

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