In re the Marriage of: Dennis Jay Goldberg, petitioner, Appellant, vs. Teresa Joan Goldberg, 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This opinion will be unpublished and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

C1-03-382

 

In re the Marriage of:

Dennis Jay Goldberg, petitioner,

Appellant,

 

vs.

 

Teresa Joan Goldberg,

Respondent.

 

Filed August 26, 2003

Affirmed Willis, Judge

 

Carver County District Court

File No. F28924922

 

Martin L. Swaden, Swaden Law Offices, 7301 Ohms Lane, Suite 550, Edina, MN  55439 (for appellant)

 

Charles M. Goldstein, Goldstein Law Office, P.A., 601 Carlson Parkway, Suite 1050, Minnetonka, MN  55305 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge; Willis, Judge; and Forsberg, Judge.*

U N P U B L I S H E D  O P I N I O N

WILLIS, Judge

            Appellant-father failed to pay child support for more than ten years.  The district court granted respondent-mother judgment for the child-support arrears but stayed entry of judgment as long as appellant-father remained current in his child-support payments.  When, through discovery, respondent-mother learned that appellant-father had inherited more than enough money to satisfy the judgment, she moved to vacate the stay.  The district court granted her motion, and judgment was entered.  Appellant-father challenges the entry of judgment, arguing that the district court should have made findings of fact under Minn. Stat. § 518.145, subd. 2 (2002), to support a reopening of a judgment, order, or proceeding under Minn. Stat. ch. 518.  We affirm the entry of judgment.

FACTS

Appellant Dennis Jay Goldberg and respondent Teresa Joan Goldberg were married in 1971.  They had two children:  a son born in 1979 and a daughter born in 1987.  The parties' marriage was dissolved in March 1989, and appellant was ordered to pay child support of $530 per week as long as both children were under age 18 and $265 per week thereafter until the daughter reached age 18.  In the fall of 1989, appellant stopped making his child-support payments.

            In October 2000, appellant moved the district court for an order decreasing his monthly child-support and child-support-arrears payments on the grounds that (1) he had substantially decreased earnings because of the closure of the businesses that he owned at the time of the dissolution and (2) respondent had substantially decreased needs because her annual salary exceeded $100,000.  Respondent opposed the motion.  In March 2001, a child-support magistrate (CSM) (1) granted appellant's motion and decreased his child-support obligation to $261 per month; (2) ordered judgment for respondent in the amount of $213,728, representing the amount of child-support arrears; and (3) stayed entry of judgment as long as appellant paid $261 per month in child support and an additional $52 (20% of $261) per month toward the arrears.

Respondent sought review of the CSM's order in district court and asked the court to vacate the stay or order appellant not to dispose of any assets he received thereafter that could be used to pay the judgment.  In April 2001, the district court denied respondent's motion, reasoning that (1) the judgment was very large and would be difficult for appellant to satisfy; (2) if appellant remained current in his child-support payments, the judgment would be stayed for up to four years, in light of the daughter's age; (3) appellant would thus have four years to prepare for entry of the judgment; (4) if appellant failed to remain current in his payments, the stay could be lifted; and (5) appellant could be sanctioned if he attempted to improperly dispose of assets that could be used to satisfy the judgment.

In June 2001, appellant's father died.  Respondent sought discovery regarding appellant's inheritance, if any, and the district court ordered appellant not to dispose of any assets that he received from his father's estate and to comply with respondent's discovery requests.  Soon thereafter, appellant moved for an order excusing him from responding to any discovery requests until the district court decided whether the CSM's March 2001 judgment and the district court's April 2001 order "should be set aside and re-opened."  The district court denied appellant's motion and ordered appellant to comply with all discovery requests.

In a March 2002 deposition, appellant stated that his father died without an estate because he had transferred the bulk of his property to a trust, of which appellant was not a beneficiary.  But appellant admitted that his father had, before his death, placed $1.5 million in an account for himself, appellant, and appellant's brother.  The account was closed, and the balance was placed in a second account for appellant and his brother.  Appellant's brother later took his share of the balance, and at the time of the deposition, appellant's share was more than $700,000.

In June 2002, respondent moved under Minn. R. Civ. P. 60.02 to vacate the stay of entry of judgment.  The district court reasoned that it had, in April 2001, denied respondent's motion to vacate the stay because appellant would have had difficulty satisfying the judgment and that appellant now had control of assets of more than $700,000.  Concluding that neither Minn. Stat. § 518.145 (2002) nor Minn. R. Civ. P. 60.02 prohibited it from vacating the stay, the district court granted respondent's motion and ordered entry of the judgment.  This appeal follows.

D E C I S I O N

            Appellant argues that vacating a stay of entry of judgment in a child-support matter is the same as reopening a judgment, order, or proceeding under Minn. Stat. ch. 518, which governs marriage dissolution.  See Minn. Stat. § 518.145, subd. 2 (2002) (providing grounds for "relieving a party" from a judgment, order, or proceeding under chapter 518).  Because, appellant contends, the district court did not make findings of fact on the grounds for reopening such a proceeding provided by Minn. Stat. § 518.145, subd. 2, the district court abused its discretion by vacating the stay and this court should remand for the necessary findings.  Respondent counters that under Minn. Stat. § 518.145, subd. 2(5), it is no longer equitable for the stay of entry of judgment to have prospective application, regardless of whether the district court makes the pertinent findings of fact.

            Neither appellant nor respondent argues that the district court lacked the authority to stay entry of judgment as long as appellant remained current in his child-support payments and paid an additional amount each month toward the arrears.  Cf. LaFreniere-Nietz v. Nietz, 547 N.W.2d 895, 898 (Minn. App. 1996) (holding that district court may stop child-support judgment creditor from garnishing judgment debtor's wages as long as debtor remained current in payments and paid additional monthly amount toward arrears).  Therefore, because neither party challenges the stay, for purposes of this appeal we conclude that the stay of entry of judgment was within the district court's discretion.

            Because staying entry of judgment was discretionary, vacating the stay must also have been discretionary.  Such a conclusion is consistent with the fact that the district court has broad discretion in deciding practically every other aspect of child support.  See, e.g., Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999) (modifying); Joneja v. Joneja, 422 N.W.2d 306, 308 (Minn. App. 1988) (setting); Valento v. Valento, 385 N.W.2d 860, 862 (Minn. App. 1986) (deviating from guidelines), review denied (Minn. June 30, 1986); Fernandez v. Fernandez, 373 N.W.2d 636, 639 (Minn. App. 1985) (reserving).  Furthermore, neither appellant nor respondent cites authority indicating that vacating a stay of entry of judgment would be anything but discretionary.  And here, where it is undisputed both that a parent owes more than $200,000 in unpaid child support and that the parent has inherited more than $700,000, we cannot conclude that requiring the parent to pay the undisputed arrears is an abuse of the district court's broad, child-support-related discretion.  Cf. Johnston v. Johnston, 280 Minn. 81, 86, 158 N.W.2d 249, 254 (1968) (stating that district court's equitable powers allow awarding relief "as the facts in each particular case and the ends of justice require").  Thus, we decline to conclude that the district court abused its discretion by vacating the stay of entry of judgment.

            Nonetheless, appellant maintains that a remand is necessary for findings under Minn. Stat. § 518.145, subd. 2.  That statute applies only to judgments, orders, or proceedings under Minn. Stat. ch. 518.  Neither the CSM nor the district court cited authority for granting the judgment to mother.  But see Minn. Stat. § 548.091, subd. 1a(a) (2002) (providing that any payment of child support not paid is a "judgment by operation of law on and after the date it is due").  And on appeal, appellant has not established that the March 2001 judgment, of which the district court stayed entry, was a judgment, order, or proceeding under Minn. Stat. ch. 518, making application of Minn. Stat. § 518.145, subd. 2, appropriate here.  Appellant, therefore, has not met his burden of establishing on appeal that the district court erred.  See White v. Minn. Dep't of Natural Res., 567 N.W.2d 724, 734 (Minn. App. 1997) (stating that error is never presumed on appeal), review denied (Minn. Oct. 31, 1997).

Moreover, even if Minn. Stat. § 518.145, subd. 2, applies, a remand would not change the outcome.  The district court could grant respondent relief from the stay on the ground that it is no longer equitable for the stay to have prospective application.  See Minn. Stat. § 518.145, subd. 2(5).  Appellant, therefore, has not established that the failure to make findings of fact prejudiced him, and we decline to remand.  See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating that to prevail on appeal, party must show both error and that error caused prejudice); see also Minn. R. Civ. P. 61 (providing that harmless error is ignored).  Accordingly, we affirm the entry of judgment.

            Affirmed.

           

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