In re Diane K. Ogg, petitioner, Respondent, vs. Andrew L. Ogg, Appellant.

This opinion will be unpublished and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

A04-517

 

In re Diane K. Ogg, petitioner,

Respondent,

 

vs.

 

Andrew L. Ogg,

Appellant.

 

Filed November 30, 2004

Affirmed

Kalitowski, Judge

 

Ramsey County District Court

File No. F9-99-003147

 

Diane K. Ogg, 675 Sharon Park Drive #143, Menlo Park, CA 94025 (pro se respondent)

 

Robert E. Lieske, Wagner, Falconer & Judd, Ltd., 3500 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Andrew Ogg argues that the district court erred in refusing to consider his motion to reduce child support arrearages and that the district court abused its discretion by awarding child support retroactively.  We affirm.

I.

Forgiveness of child support arrearages that have accrued before the party has brought a motion to modify child support is a retroactive modification of support governed by Minn. Stat. § 518.64, subd. 2(d).  Long v. Long, 670 N.W.2d 621, 627 (Minn. App. 2003) (citing Darcy v. Darcy, 455 N.W.2d 518, 524 (Minn. App. 1990)).  The moving party has the burden of proof, and the district court's power to forgive arrearages should be exercised cautiously upon satisfactory evidence.  Darcy, 455 N.W.2d at 525.  Appellant claims that the district court erred by ruling that his motion to forgive or adjust arrearages was time-barred by the terms of a child support magistrate's previous order.

            Appellant appeared before the district court on March 5, 2003, for a hearing on custody and child support matters.  Appellant claims that the district court refused to consider his motion for forgiveness of child support arrearages, which appellant filed in May 2002.  Appellant's motion was first scheduled for a hearing before a child support magistrate on June 10, 2002, then continued for hearing on November 4, 2002.  The record indicates that during the November hearing, the child support magistrate acknowledged that appellant was requesting an adjustment of his arrearages and stated that the child support arrearages needed to be clarified. 

            In an order filed on November 14, 2002, the child support magistrate directed the Ramsey County Child Support Enforcement Division to conduct an account review to determine the amount of arrearages.  Ramsey County was to file with the court and serve upon the parties its review when completed.  In her order, the magistrate stated:

Either party may file and serve a motion for judicial review of the account review within 15 days of the date of service of the account review.  Failure to timely file and serve the motion shall result in the County's determination of arrearages to be final through the date of its review.

 

            On February 26, 2003, Ramsey County filed with the court and served upon the parties its account review summary.  According to the review, appellant owed respondent arrearages of $7,730.39.  The account review also indicated that appellant owed Ramsey County arrearages of $1,084.68.  Appellant did not file a motion for judicial review of the account review. 

            On March 5, 2003, appellant and respondent appeared before the district court for a hearing on issues of custody and child support.  Although appellant's motion was not properly before the court, appellant orally raised the issue of arrearages by asking the judge when the court would consider his May 2002 motion for forgiveness of arrearages.  The judge asked appellant if he had seen Ramsey County's account review.  Appellant responded that he had and stated that his motion was to have all arrearages deemed satisfied.  The judge stated that he would reserve and review that question.  Neither the judge nor appellant mentioned the 15-day time limit for either party to file a motion for judicial review of the account review.  The 15 days ran on March 13, 2003, and appellant still had not filed a motion for judicial review.

            In an order filed on March 31, 2003, the district court found that appellant's May 2002 motion for forgiveness of child support arrearages was addressed by the child support magistrate in her order filed on November 14, 2002.  The district court held that because neither party had filed a motion for judicial review of the account review, as instructed in the child support magistrate's order, the arrearages reported in the review were final.  Therefore, the district court ordered appellant to pay arrearages of $7,730.39 to respondent and $1,084.68 to Ramsey County. 

            Contrary to appellant's claim, we conclude that the district court considered appellant's motion for forgiveness of child support arrearages.  In doing so, the district court found that the child support magistrate established a system of review in the order filed on November 14, 2002, and that if the parties disagreed with the account review, they were to file a motion for judicial review within 15 days of the date the account review was filed.  Appellant failed to file such a motion.  Appellant presents no evidence to suggest that the district court had a duty to instruct appellant on the review process, which was clearly set forth in the child support magistrate's order.  Thus, we conclude the district court did not err in holding that the arrearages reported in the account review were final.

II.

            A district court has broad discretion to provide for the support of the parties' children.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002); Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  A district court abuses its discretion when it sets support in a manner that is against logic and the facts on the record or misapplies the law to the facts.  Rutten, 347 N.W.2d at 50 (setting support in a manner that is against logic and the facts on the record); Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn. App. 1998) (improper application of the law). 

            Appellant argues that the district court erred in setting child support retroactive to September 2001.  Appellant states that the sole purpose of the hearing in March 2003 was not to reconsider the issue of custody, but to determine the issues of child support, medical support, and other financial issues.  Appellant claims that the district court abused its discretion by retroactively modifying custody and, thereby, burdening appellant with additional child support arrearages.

            In its order filed on March 31, 2003, the district court included a timeline of the parties' legal proceedings.  The district court highlighted the following:  (1) the district court order filed on August 14, 2001, awarding appellant temporary physical custody of one child; (2) the child support magistrate's order filed on September 21, 2001, setting support owed by each party at $0.00 as of September 1, 2001, based on a substantial change in circumstances and scheduling a review hearing on financial issues for March 4, 2002; (3) the child support magistrate's order filed March 5, 2002, continuing the September 2001 child support order for nunc pro tunc review on June 10, 2002, due to insufficient evidence to review the September 2001 order; (4) the child support magistrate's order filed June 11, 2002, continuing the terms of the prior support order subject to nunc pro tuncreview and scheduling a review hearing for November 4, 2002; (5) the district court order filed November 4, 2002, awarding appellant sole legal and sole physical custody of two children; (6) the child support magistrate's order filed November 14, 2002, directing respondent to pay child support to appellant and directing Ramsey County to conduct an account review to determine arrearages; (7) the district court order filed December 9, 2002, staying the custody order filed on November 4, 2002, and scheduling the custody matter for a hearing on March 5, 2003; (8) the child support magistrate's order filed December 26, 2002, staying the child support order filed on November 14, 2002, and transferring all issues to the district court for the hearing on March 5, 2003. 

            On this record we cannot agree with appellant's claim that the sole purpose of the hearing on March 5, 2003, was to determine the issues of child support, medical support, and other financial matters rather than the issue of custody.  As noted above, the district court filed an order on December 9, 2002, staying the custody order filed on November 4, 2002, and setting the matter on for hearing on March 5, 2003.  Therefore, the purpose of the hearing on March 5, 2003, was, in part, to address custody issues. 

            Appellant also claims that because respondent had not filed a motion for modification of child support, the district court's award of child support retroactive to September 1, 2001, was contrary to Minnesota law.  Minn. Stat. § 518.64, subd. 2(d) (2002).  We disagree.  In the order filed on December 26, 2002, the child support magistrate stated that on December 11, 2002, respondent served a motion for review of the child support order filed on November 14, 2002.  And by statute, a court may retroactively modify child support only with respect to a period during which the petitioning party has a pending motion for modification.  Minn. Stat. § 518.64, subd. 2(d) (2002).  Thus, respondent was entitled to retroactive child support dating back to at least December 2002.  But in addition, as noted by the district court, the orders filed on March 5, 2002, and June 11, 2002, continued the September 2001 child support order for nunc pro tuncreview.  Thus, we conclude the record indicates that the district court had the authority to make the child support award to respondent retroactive to September 2001. 

            Appellant also argues that the district court erred by failing to consider appellant's custody of his daughter with regard to child support.  But as noted above, the district court highlighted the custody order filed on August 14, 2001, granting appellant temporary physical custody of her.  The district court also referred to the custody order filed on November 4, 2002, granting appellant sole physical and sole legal custody of one of his children and noted that at the time of the hearing on March 5, 2003, that child was not living with appellant.  Therefore, we reject appellant's claim that the district court did not consider appellant's custody of his daughter. 

            Finally, appellant claims that the "nunc pro tunc issue" was previously addressed in the child support magistrate's order filed on November 14, 2002.  Appellant states that there was no motion before the district court to vacate that order, and that the district court failed to address any of the factors of Minn. Stat. § 518.145, subd. 2, required by law.  Minn. Stat. § 518.145, subd. 2 (2002).  We disagree.  As noted by the district court, the child support magistrate's order filed on December 26, 2002, stayed the child support order filed on November 14, 2002, and transferred the issue to the district court for the hearing on March 5, 2003.  Therefore, review of the September 2001 child support order was properly before the district court on respondent's motion for review filed in December 2002. 

            In conclusion, based on the entire record, we cannot say that the district court abused its discretion by setting child support retroactive to September 2001. 

            Affirmed.

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