In re the Marriage of: James Richard Huntsman, petitioner, Appellant, vs. Zenith Annette Huntsman, Respondent, and County of Washington, intervenor, 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This opinion will be unpublished and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

A04-286

 

In re the Marriage of:

James Richard Huntsman, petitioner,

Appellant,

 

vs.

 

Zenith Annette Huntsman,

Respondent,

 

and

 

County of Washington, intervenor,

Respondent.

 

Filed November 30, 2004

Affirmed in part, reversed in part, and remanded;

Motion to strike denied

Randall, Judge

 

Washington County District Court

File No. F7-98-2231

 

James R. Huntsman, 2570 Moundsview Drive, Mounds View, MN  55112  (appellant pro se)

 

Brad C. Eggen, Law Offices of Brad C. Eggen, 1100 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN  55402  (for respondent Zenith Huntsman)

 

Doug Johnson, Washington County Attorney, Julie A. Mougin, Assistant Washington County Attorney, Washington County Government Center, 14949 - 62nd Street North, Stillwater, MN  55082  (for respondent Washington County)

 

 

            Considered and decided by Minge, Presiding Judge, Randall, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

On appeal after remand in this dissolution dispute, pro se appellant husband argues that (a) the child support magistrate (CSM) lacked jurisdiction to address a cost-of-living adjustment (COLA) where the only county service requested was income withholding; (b) the district court exceeded the scope of its authority by addressing the extent of appellant's profit sharing when the only issue to be reconsidered was his net monthly income; (c) the district court overstated appellant's income by failing to recognize available deductions and hence overstated his maintenance and support obligations; (d) the district court abused its discretion in denying appellant's motion to reduce support and maintenance because it failed to give appropriate recognition to the loss of his job, and erroneously included a lump sum payment in his income; (e) the award of conduct-based attorney fees was an abuse of the district court's discretion; (f) the failure of the district court to satisfy Minn. Stat. § 570.025 (2002) rendered void an attachment order; (g) the district court erred by not limiting the county's ability to withhold appellant's disposable income; and (h) appellant's child support obligation should have terminated in May 2004, rather than June 2004.  We affirm in part, reverse in part, and remand.

           

FACTS

            On April 23, 1998, appellant James Huntsman served respondent, Annette Huntsman with a summons and a petition for dissolution of their marriage.  The parties had three children during the marriage, but only one, S.B.H., was a minor at the time of the dissolution proceedings.  The parties agreed that they would share joint legal custody of S.B.H., and that respondent would have sole physical custody.  The only issues at trial were spousal maintenance and child support.  

            Throughout the marriage, respondent was the primary caretaker of the parties' children.  Although she has a bachelor's degree in secondary education and medical technology, respondent has not worked full-time since 1976.  Instead, she held various part-time positions, such as medical technologist, realtor, doll-shop owner, substitute teacher, and cleaning lady.   

            Appellant holds a Ph.D. in physical chemistry and an MBA in management.  He also passed the patent bar in 1998, and became a certified patent agent.  At the time of the marriage dissolution, appellant was employed as a senior intellectual-property analyst at 3M, where he had worked since 1973.  Appellant's gross annual income, which consisted of monthly base payments and quarterly profit-sharing payments, was approximately $100,000.  

            On January 12, 2000, the district court made extensive findings with respect to the parties' monthly incomes and expenses.  The court (1) awarded respondent permanent maintenance; (2) awarded respondent additional temporary maintenance to obtain a teaching credential;[1] (3) ordered that appellant pay child support for the parties' minor child; (4) ordered that appellant pay respondent's health insurance and S.B.H.'s health insurance; (5) ordered that appellant share the costs of the child's non-deductible and non-insured medical costs with respondent; and (6) ordered that appellant maintain life insurance as security for his child support.

            Both parties filed motions for amended findings of fact and conclusions of law.  After a hearing on the motions, appellant filed supplemental proposed amended findings of fact.  The district court's August 30, 2000, amended order (1) increased appellant's maintenance obligations; (2) rejected as untimely appellant's supplemental proposed amended findings of fact; and (3) ordered the parties to alternate the tax-dependency exemption for the parties' minor child.  Appellant subsequently appealed, and this court affirmed the district court on all issues except for calculation of appellant's net income.  Huntsman v. Huntsman, No. C1-00-19236, 2002 WL 556142 (Minn. App. Apr. 16, 2002).[2]  With respect to appellant's net income, this court reversed and remanded to the district
court "for a clear calculation of appellant's net income as required by Minn. Stat. § 518.551, subd. 5(b) (2002)."  Id. at *4.

            During the pendency of the first appeal, appellant moved the district court to vacate the amended order that was the subject of the appeal.  He based his motion to vacate on a claim that respondent had fraudulently failed to disclose decreased monthly transportation and housing expenses that resulted from using her marital property proceeds to make substantial down payments on home and vehicle purchases.  The district court denied the motion to vacate on December 15, 2001, stating that the pending appeal made appellant's motion untimely and meritless.  The court also ordered that appellant pay respondent $2,400 in conduct-based attorney's fees.  Appellant appealed, and this court affirmed the district court's denial of his motion to vacate and the order for conduct based attorney's fees.  Huntsman v. Huntsman, No. C9-02-85, 2002 WL 2005472 (Minn. App. Sept. 2, 2002). 

            On April 2, 2002, 3M notified appellant that his position in the company was being "involuntarily terminated."  3M gave appellant two options:  (1) imposing May 16, 2002, as the latest date of departure; or (2) imposing June 30, 2002, as the latest departure date.  Both options provided appellant with the opportunity to search for a position within the company, and both options included one-and-a-half weeks of pay for each year of service with the company.  Both options also included payments for accrued/unused vacation/personal holiday pay.  Appellant ultimately chose the first option, and involuntarily retired on May 16, 2002.   

            On April 29, 2002, appellant moved to reduce his child support and spousal maintenance obligations on the basis that, due to the involuntary termination of his job on April 2, 2002, appellant had substantially decreased earnings, making his existing spousal maintenance and child support payment unreasonable and unfair.[3]  Appellant also contested a cost-of-living adjustment (COLA) increase of his child support before a magistrate.[4]  The child support magistrate (CSM) denied appellant's request, and ordered a 6.81% COLA increase in appellant's monthly child support.  Appellant subsequently requested review of the CSM's order by a district court judge.

            Due to the involuntary termination of appellant's employment, appellant began receiving unemployment benefits in June 2002, which totaled $452 per week before taxes.  Shortly thereafter, Washington County began intercepting $271 per week from appellant's unemployment benefits to be applied toward appellant's child support arrearages.  Appellant responded by moving the district court in October 2002, for an order to stop the withholding of child support payments.  Appellant argued that the amount was in excess of the 65% limit of disposable earnings allowed under Minn. Stat. § 518.6111, subd. 9(a) (2002) and 15 U.S.C. § 1673(b) (2002).  Using appellant's figures, the withheld amount
was high by approximately $6 per week, meaning $265 per week should have been the maximum intercepted.    

            On December 5, 2002, respondent moved to attach appellant's forthcoming employment severance payment as security for payment of appellant's arrears of spousal maintenance and child support.  Respondent's motion, along with appellant's multiple motions, and the recalculation of net income on remand from this court,[5] were heard on December 20, 2002.  The district court ordered attachment of appellant's severance payment on December 30, 2002, and on April 7, 2003, the district court issued an order recalculating appellant's net income and reestablishing appellant's child support and maintenance obligations.  The order also modified the CSM's COLA increase upward, denied appellant's motion for downward modification of his support and maintenance obligations, and found that motion frivolous in light of appellant's increased income.  Finally, the court directed the parties to:

Confer with the other parties and prepare a summary of [appellant's] child support and spousal payments through April 1, 2003, and a stipulation for all parties to sign regarding the amounts paid and how the issues of unpaid child support, unpaid maintenance, the supersedeas bond, and the deferred severance payment should be resolved.

 

            On June 19, 2003, the district court issued its findings of fact and order concerning appellant's child support and spousal maintenance arrearages.  Before judgment was entered, appellant filed two appeals.  Both appeals were ruled premature because judgment had not been entered on the district court's order.  Appellant subsequently petitioned the Minnesota Supreme Court for review, which was denied on December 16, 2003. 

            In January 2004, the district court issued an order finding that appellant owed respondent in excess of $85,000 in past child support, spousal maintenance and attorney fees.  The district court then attached the next 3M severance payment because of appellant's substantial arrearages.  A month later, judgment was entered awarding respondent arrearages and attorney fees, denying appellant's request for downward modification of his support and maintenance obligations, and denying appellant's various COLA motions.  This appeal followed.      

D E C I S I O N

I.

            Appellant argues that the CSM lacked subject matter jurisdiction over the COLA proceeding because the COLA matter is not a Title IV-D case.  An appellate court considers jurisdictional issues as a matter of law.  Handicraft Block Ltd. P'ship v. City of Minneapolis, 611 N.W.2d 16, 19 (Minn. 2000).  Subject matter jurisdiction involves a court's authority to decide a particular class of actions and its authority to decide the particular questions before it.  Herubin v. Finn, 603 N.W.2d 133, 137 (Minn. App. 1999).  A ruling is void if it is rendered without subject-matter jurisdiction.  Matson v. Matson, 310 N.W.2d 502, 506 (Minn. 1981).  The lack of subject-matter jurisdiction may be raised at any time, including for the first time on appeal. Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 432 (Minn. App. 1995), review denied (Minn. May 31, 1995).

            A "IV-D case" is:

A case where a party has assigned to the state rights to child support because of the receipt of public assistance as defined in section 256.741 or has applied for child support services under title IV-D of the Social Security Act, United States Code, title 42, section 654(4).

 

Minn. Stat. § 518.54, subd. 14 (2002); see also Minn. R. Gen. Pract. 352.01(f) (stating that a "IV-D case" is "any proceeding where a party has either (1) assigned to the State rights to child support because of the receipt of public assistance as defined in Minn. Stat. § 256.741 (2000), or (2) applied for child support services under Title IV-D of the Social Security Act, 42 U.S.C. § 654(4) (1994).  ‘IV-D case' does not include proceedings where income withholding is the only service applied for or received under Minn. Stat. § 518.6111 (2000).").  Thus, under the statute, for a "IV-D case" to exist, "a party" must have "assigned" his or her right to receive support to the state or "applied for" the requisite child-support services.  Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 238 (Minn. App. 2003), review denied (Minn. Nov. 25, 2003). 

            Appellant contends that the COLA matter is not a "IV-D case" because respondent authorized only income withholding services from Washington County, and there is insufficient evidence in the record to support a finding that the matter is a "IV-D case."  We disagree.  The CSM specifically found that jurisdiction was appropriate under Minn. Stat. § 484.702, subds. 1 and 3 (2002).  Although the record is sparse with respect to whether the COLA proceeding was a "IV-D case," there is evidence in the record that respondent applied for and received full Title IV-D enforcement and collection services from Washington County.  Therefore, the matter is a "IV-D case" and jurisdiction was proper.  Because we conclude that there is evidence in the record that respondent applied for and received full Title IV-D child support services, appellant's motion to strike is denied.

II.

            Appellant argues that the district court exceeded the scope of its authority on remand by addressing his gross profit-sharing income because the only issue on remand was appellant's gross monthly income.  It is the duty of the district court on remand to execute the mandate of the reviewing court strictly according to its terms.  Halverson v. Village of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982).  The district court has no power to alter, amend, or modify a reviewing court's mandate.  Id.

            Here, the district court was directed on remand to provide a correct calculation of appellant's net income.  As the district court attempted to accomplish this task, the court discovered an error in the original calculation of appellant's gross monthly profit-sharing income.[6]  This error had a direct effect on appellant's net income.  To correctly calculate appellant's net income, as ordered by this court, the district court had to correct its error in the calculation of appellant's gross monthly profit-sharing income.  See Minn. Stat. § 518.551, subd. 5b(a) (2002) (stating that the determination of income includes pay stubs, employer statements, federal tax returns including W-2 forms, 1099 forms, and all other documents evidencing income as received that provide verification of income over a longer period).  A district court on remand has authority to review the overall package of support and maintenance even though the maintenance, which it has awarded, is within the acceptable range of judicial discretion.  See Driscoll v. Driscoll, 414 N.W.2d 441, 446 (Minn. App. 1987).  Accordingly, the district court did not exceed the scope of its authority on remand.    

III.

Appellant contends that the district court on remand miscalculated his net income by failing to allow him all the available statutory deductions, and therefore his maintenance and support obligations were overstated.  The district court's duty on remand is to execute the mandate of an appellate court according to its terms.  Halverson, 322 N.W.2d at 766.  The district court's findings on net income will be affirmed on appeal if
those findings have a reasonable basis in fact and are not clearly erroneous.  State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999).

In Huntsman, this court remanded the matter back to the district court for "a clear and correct calculation of [appellant's] net income and an associated adjustment of appellant's maintenance obligation, if necessary.  2002 WL 556142, at *5.  The court also noted that, on remand, the district court should clearly state the appropriate statutory deductions available to appellant.  Id.

Appellant contends that his net income for support purposes was miscalculated on remand because the district court failed to allow him various statutory deductions.  We disagree.  The district court's order properly sets forth the appropriate statutory deductions available to appellant, including the cost of dependent health insurance coverage.  The district court then calculated appellant's net income for child support purposes based on the available statutory deductions.  The evidence in the record supports the court's determination of appellant's net income.  Therefore, appellant's child support obligation was properly calculated.  See Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987) (stating that this court will not reverse a determination of net income used to set child support so long as it has a reasonable basis in fact).

However, although the district court set forth the appropriate statutory deductions available to appellant in calculating his net income available for child support purposes, the district court neglected to deduct the cost of dependent health insurance coverage in calculating appellant's spousal maintenance obligation.  The failure to deduct the cost of dependant health insurance coverage effectively overstated appellant's net income for spousal maintenance.  Therefore, to ensure a correct calculation of appellant's net income for spousal maintenance purposes, we remand for a correct calculation of appellant's net monthly income.        

IV.

Appellant argues that the district court abused its discretion by denying his motion to modify spousal maintenance and child support.  On appeal from a district court's decision addressing motions to modify maintenance and motions to modify support, an appellate court reviews the district court's decision for an abuse of discretion.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997) (maintenance); Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (support).  An abuse of discretion occurs when the district court resolves the matter in a manner that is "against logic and the facts on [the] record."  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). 

Maintenance and support orders may be modified upon a showing of substantially changed circumstances rendering the existing support obligation unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a) (2002).  In determining whether a "substantial change" has actually occurred, a court must follow the guidelines provided by statute:

The terms of an order respecting maintenance or support may be modified upon a showing of one or more of the following: (1) substantially increased or decreased earnings of a party; (2) substantially increased or decreased need of a party . . .; (3) receipt of assistance . . .; (4) a change in the cost of living for either party . . . any of which makes the terms unreasonable and unfair . . . .

 

Id. 

After appellant's position with 3M was terminated, appellant received a lump-sum severance package from 3M consisting of roughly $24,600 from profit sharing, $6,100 compensation for accrued or unused vacation, and $93,800[7] in severance benefits.  He contends that the district court abused its discretion by denying his motion for modification of maintenance and child support because the court erroneously characterized his lump-sum severance package as income for support purposes.  Whether a source of funds is income for purposes of determining an individual's support obligation is a question of law.  Sherburne County Soc. Servs. v. Riedle, 481 N.W.2d 111, 112 (Minn. App. 1992).

Under Minn. Stat. § 518.54, subd. 6 (2002), "‘Income' means any form of periodic payment to an individual including, but not limited to, wages, salaries, payments to an independent contractor, workers' compensation, unemployment benefits, annuity, military and naval retirement, pension and disability payments."  Generally, if the payment is periodic, it is income, but if the payment is not periodic, it is not income.  Herrley v. Herrley, 452 N.W.2d 711, 714 (Minn. App. 1990).  But in Minnesota, this mechanistic approach is generally disfavored.  See Grigsby v. Grigsby, 648 N.W.2d 716, 721 (Minn. App. 2002).  Rather, this court has adopted an analytic approach to the interpretation of settlements and their availability for spousal maintenance.  See id. at 722.  The analytic approach focuses "on the purpose of each component of the settlement.  To the extent that the settlement is intended to compensate the spouse for labor rendered during the marriage, it is considered marital, and to the extent it is intended to replace earnings from postdissolution labor, it is considered nonmarital."  Id. at 721. 

            Here, appellant had the burden to demonstrate a substantial change in circumstances rendering his existing spousal maintenance obligation unfair.  The district court found that appellant failed to meet this burden because appellant's financial circumstances remained unchanged in light of the severance package received by appellant.  On appeal, appellant has the burden to show that there was a substantial change in circumstances because the severance package could not be used as a resource for spousal maintenance.  But appellant has failed to meet his burden.  Although the severance package is not periodic, appellant failed to demonstrate that the purpose of the severance package was not to replace future income.  See id.  Because appellant failed to carry his burden, we conclude the severance pay can be used as a base to calculate spousal maintenance for at least twelve months following receipt of the severance. 

Child support is based on broader resources than just "income."  The Minnesota statutes provide:

(c) In addition to the child support guidelines, the court shall take into consideration the following factors in setting or modifying child support or in determining whether to deviate from the guidelines:

(1) all earnings, income, and resources of the parents including real and personal property . . . .

 

Minn. Stat. § 518.551, subd. 5(c)(1) (2002).  Although a severance package is not periodic, it is a resource available to appellant that would enable him to pay a child support obligation, at least for a while.  See Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993) (remanding for the district court to consider obligor's 401k funds as "resource" when determining appropriate child support), review denied (Minn. June 22, 1993).  The lump sum severance payment of $93,800 is essentially one year of appellant's salary.  Thus, logically, the district court could equitably base one year of full child support calculated against appellant's severance package.  At least for the next 12 months following the receipt of the severance package, appellant has not shown a substantial change in circumstances that would render his existing child support obligation unfair.

            Because appellant's job was terminated in April 2002, and appellant's severance payment can be used to pay his maintenance and child support obligations for the next year, this case goes back to the district court for automatic review one year after appellant receives his final paycheck and the severance package.  On remand, the burden will be on appellant to show that his income was substantially affected.  Following job termination (most likely, certainly hopefully, by the time this opinion is released in the late fall of 2004), appellant will have secured other employment upon which to base child support and/or spousal maintenance, and the "severance package issue" will, thus, be mooted.  Following termination, we assume appellant will be making good-faith efforts to secure other employment.  In the meantime, for the one year following his termination, appellant has a severance package from which child support and spousal maintenance can be calculated.  If, even with good-faith efforts, appellant has not found a job between April 2002 and April 2003, then there is a substantial change in circumstances, now rendering the previous child support order and maintenance obligation unfair. 

The next big issue is, does appellant even have access to his severance package to enable him to use that money to pay child support and maintenance.  We note that the district court attached appellant's severance pay to assure payment of appellant's obligations to respondent for spousal maintenance, child support and attorney's fees, and to secure spousal maintenance and child support in the future.  As stated earlier, the $93,800 severance package appellant received from 3M can equitably be looked at to satisfy appellant's child support and maintenance obligation if appellant has access to the severance package.  If appellant does not have access to the $93,800 severance package, then the record discloses no income on which to base child support and maintenance.  Because the record is unclear as to the amount of the severance package that was used up for appellant's arrearages, and the amount that is held for future security, we remand to the district court for a clear determination of how the severance package was distributed.  It is simply mathematics.  If any of the severance package was actually attached and used to pay arrearages, then appellant does not have that money with which to pay child support and maintenance.  In that instance, appellant is entitled to a downward calculation of child support.  On the other hand, if the entire amount attached is simply held in trust for the periodic payment of child support and spousal maintenance, it can be used to satisfy these obligations.  Any amount escrowed for the payment of attorney fees shall be reduced by our decision on "issue V."

V.

            Appellant argues that the district court abused its discretion by finding his motion to modify maintenance and child support frivolous, and awarding attorney fees 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).

            Because of the nature of his severance package, appellant had a colorable argument regarding his motion to modify maintenance, and his motion to modify was not frivolous.  Accordingly, we reverse the district court's award of attorney fees in favor of respondent.  If any monies of appellant have already been given to respondent for attorney fees, and if she does not have them to return, appellant gets a credit for that amount out of any pending obligation for past or future spousal maintenance.

VI.

            Appellant argues that the January 16, 2004 order for preliminary attachment is void because the order is so procedurally defective as to be fatal to the district court's jurisdiction.  We disagree.  On March 15, 2004, this court directed the parties to brief the issue of whether the district court's January 16, 2004 order for preliminary attachment was a final and appealable order.  Specifically, this court asked if the preliminary attachment order was issued ex parte and if appellant had the opportunity to raise objections to the order in district court.  Appellant did not request an evidentiary hearing, and acknowledged by his memorandum that the district court's order was a final order, without the need for additional process.  This court subsequently accepted the record that the district court's attachment order followed written notice, full briefing with evidentiary support, and oral argument on the record.  Therefore, the attachment order was not procedurally defective, and appellant has conceded any procedural issues with respect to the attachment.

            Appellant also contends that the order for attachment is void because it fails to satisfy the requirements of Minn. Stat. § 570.025 (2002).  But the findings support the district court's order, and the relevant statutory criteria have been met.  The findings document the fact that a similar attachment order was issued in January 2003, and that appellant has arrearages in child support, spousal maintenance, and attorney fees plus interest in excess of $85,000.  The order further documents each of the criteria under the applicable statute, including (1) that appellant was informed of the order; (2) that appellant appeared at the proceedings in opposition to the order; (3) that respondent demonstrated her probability of success on the merits in obtaining judgment for spousal maintenance in excess of the amount of the supersedeas bond and other security; and (4) that respondent has demonstrated that her interests cannot be protected other than by directing seizure and attachment of the severance payment appellant was to receive from 3M in January 2004.  Finally, in accordance with the relevant statutory criteria, the order recognized appellant's "pattern of disposing of non-exempt property with intent to delay payment," appellant's removal of property from the state by purchasing out-of-state property with intent to avoid payment to respondent, and appellant's conversion of income for the purpose of placing the property beyond the reach of respondent.  Accordingly, the district court properly considered the relevant statutory criteria and the preliminary attachment order is not void.

VII.

            Appellant argues that the amount withheld from his unemployment benefits was excessive, and therefore the district court abused its discretion in denying his motion for an order to cease and desist income withholding from his unemployment benefits.  An issue is moot when a determination is sought on a matter which, when made, will not have any practical effect or will make no difference with respect to the controversy on the merits.  Obermoller v. Federal Land Bank of St. Paul, 409 N.W.2d 229, 230-31 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987).

            Here, appellant exhausted his unemployment benefits in May 2003, well over a year ago.  Although the county admitted that the public authority mistakenly intercepted $6 a week too much from appellant's unemployment benefits, the record reflects that appellant was given proper credit for the excess withholding with respect to his maintenance and child support arrearages.  Because appellant's unemployment benefits have been exhausted, and appellant was properly credited for the amount withheld from his unemployment benefits, the issue of whether the district court abused its discretion by denying appellant's motion for an order to cease and desist income withholding from his unemployment benefits is moot.  We do state for the record that "a paycheck is a paycheck is a paycheck," and the district court's finding that the $6 per week mistake was de minimum was in error.  The legislative mandates regarding the limits on how much of a worker's wages can be attached are strict and should be adhered to.   

VIII.

            Finally, appellant asserts that although his daughter will officially graduate from high school on June 5, 2004, she will have completed her graduation requirements in May 14, 2004, by taking college credits through a program offered by her high school. 
Therefore, appellant argues that his child support obligation should end in May 2004, rather than June 2004. 

            Appellant's argument is close to frivolous and, on this issue, the district court could have looked at bad faith attorney fees on an ex parte basis.  The controlling district court dissolution decree orders appellant to pay child support to respondent "until said minor child attains the age of eighteen (18) or the age of twenty (20) if said child is still attending high school."  Some senior students will finish the coursework needed to guarantee a diploma just before the actual graduation date.  Some don't.  In fact, some might have to return for a few weeks in summer school just to finish a paper or complete the last credit needed.  Other senior students, through diligence, hard work, and aptitude might complete the required coursework a week or two weeks or four weeks before the actual graduation date.  It simply varies from student to student.  The common-sense approach, which we adopt, is defined that, even with the required coursework done, the student "is still in school until the actual graduation."  Why does appellant want to penalize his own child for being industrious and working ahead by taking college courses?!

            Since S.B.H. does not graduate from her high school until June, she is "still attending her high school" in May.          

            Affirmed in part, reversed in part, and remanded; motion to strike denied.

[1]  Respondent testified at trial that she would like to attend the University of Minnesota to get an elementary teaching credential, which would require her to complete a two-year, $12,000 graduate program.

[2]  The appeal was initially dismissed as untimely, but it was reinstated by the Minnesota Supreme Court to be decided on the merits.  See Huntsman v. Huntsman, 633 N.W.2d 852, 856 (Minn. 2001).

[3]  Due to appellant's second pending appeal, the originally scheduled hearing date had to be rescheduled because the district court did not have the file. 

[4]  Intervenor Washington County did not become involved with this litigation matter until appellant challenged the COLA to his child support obligations.

[5]  See Huntsman, 2002 WL 556142, at *4.

[6]  In its previous order calculating appellant's gross profit-sharing income, the district court found appellant's gross profit-sharing income for the first three quarters of 1999 to be $14,104.92.  Based on this figure, the district court determined appellant's gross monthly profit-sharing income to be $1,200.  On remand, the district court determined that appellant's gross monthly profit-sharing income was actually $1,567, and the court provided the corrective finding.

[7]  Appellant elected to take payment of the $93,800 severance benefits package in two lump sum payments.  Appellant received the first payment in January 2003, and the second payment in January 2004.