Marcia Rona Fischer, petitioner, Respondent, vs. Gregory Lynn Fischer, Appellant.

Marcia Rona Fischer, petitioner, Respondent, vs. Gregory Lynn Fischer, Appellant. A06-1656, Court of Appeals Unpublished, July 24, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1656

 

Marcia Rona Fischer, petitioner,

Respondent,

 

vs.

 

Gregory Lynn Fischer,

Appellant.

 

Filed July 24, 2007

Reversed; motion denied

Shumaker, Judge

 

Hennepin County District Court

File No. 27-FA-288435

 

 

Marcia Rona Fischer, 4605 Orchid Lane North, Plymouth, MN 55446 (pro se respondent)

 

John R. Hill, Larkin Hoffman Daly & Lindgren, Ltd., 1500 Wells Fargo Plaza, 7900 Xerxes Avenue South, Minneapolis, MN 55431 (for appellant)

 

 

            Considered and decided by Shumaker, Presiding Judge; Peterson, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Appellant challenges the district court's modification of his child-support and spousal-maintenance obligations, arguing that the district court abused its discretion by automatically reinstating his original obligations after he regains employment and by ordering him to pay spousal-maintenance arrearages.  Appellant also moves to strike portions of respondent's brief.  Because the district court abused its discretion by requiring arrearages when appellant's maintenance obligation was suspended and by automatically reinstating the original amounts of appellant's obligations for maintenance and child support upon reemployment, and because it is unnecessary to strike substantial portions of respondent's brief, we reverse, and deny the motion to strike.

FACTS

Upon the dissolution of appellant Gregory Lynn Fischer's 20-year marriage to respondent Marcia Rona Fischer in 2005, the district court ordered appellant to make monthly payments of $1,298 for child support and $950 as permanent spousal maintenance.

In 2006, the company for which appellant worked at the time of the dissolution was acquired by another company, and appellant's employment was terminated.  He received severance pay and other remuneration, but his wages were discontinued as of June 5, 2006.  He then moved to modify his child-support and maintenance obligations.

The court determined that, although appellant's employment had been involuntarily terminated, he has sufficient financial resources to continue paying child support of $1,298 each month.  The court denied the motion to modify child support.  The court ordered that spousal maintenance was to be suspended but that arrearages would accrue during the suspension and that, when appellant regained employment, his "spousal maintenance obligation shall be immediately reinstated, without further court order, at $950 per month."

Appellant moved for reconsideration, and the court issued a second order in which the court found that appellant experienced a substantial change of circumstances that justified a prospective temporary reduction of child support to $480 each month.  But the order provided for the reinstatement of the original child-support amount when appellant becomes employed, and the court denied any further modification of spousal maintenance.

Arguing that the court erred by requiring the automatic reinstatement of the original child-support and spousal-maintenance obligations and by providing that maintenance arrearages would accrue during the suspension period, appellant brought this appeal.

D E C I S I O N

Spousal Maintenance

            The district court, in the sound exercise of its discretion, may modify the terms of a spousal-maintenance order.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  We review a modification of a spousal-maintenance order to determine whether the court has abused its discretion.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  The district court abuses its discretion if its findings of fact are not supported by the evidence in the record or if it misapplies the law.  Id. at 202 & n.3.

A spousal-maintenance order may be modified upon a showing of substantially decreased earnings of a party.  Minn. Stat. § 518.64, subd. 2(a)(1) (2004).  Although the district court did not make findings regarding appellant's earnings during his employment, the court referred to his limited resources and his substantial change of circumstances and found that he was receiving unemployment compensation of $1,687 each month and that such benefit would last for 26 weeks.  In her pro se brief, respondent protests that appellant has the ability to pay his original obligations, and she argues that appellant has not experienced a change of circumstances, but she does not challenge the court's findings in any other respect and cites no authority for any of her arguments.

We note that the district court suspended appellant's "spousal maintenance obligation" temporarily.  Unlike Anderson v. Anderson, 421 N.W.2d 410, 412 (Minn. App. 1988), in which it was held that the district court did not abuse its discretion by reducing child-support payments, obligating the obligor to pay arrearages, and providing for the automatic reinstatement of the pre-reduction amount, the court here suspended appellant's obligation to pay spousal maintenance.  If there is no obligation to pay, it is inconsistent, and erroneous as a matter of law, to require that arrearages accrue during the suspension.  Thus, the district court's order that appellant pay arrearages for the period during which he has no obligation for spousal maintenance must be reversed.

Although the court acted within its discretion in ordering the temporary suspension of appellant's maintenance obligation and the automatic reinstatement of an obligation to pay upon reemployment, the court abused its discretion in ordering reinstatement of the amount of maintenance required before the suspension.  In setting a maintenance amount, the court must consider, among other things, the obligor's ability to pay, as well as the obligee's needs.  Minn. Stat. § 518.552, subd. 2(g) (2006).

Because appellant's job was eliminated, and, at the time of the court's order his income was temporary, both the particular reemployment he might obtain and the income he will receive from his new employment, his ability to pay was unknown. Thus, the court's order as to the amount of spousal maintenance to be reinstated must be reversed.

Child Support

            Appellant also challenges the automatic reinstatement of the previously ordered child support upon his reemployment.

            The child-support guidelines in Minn. Stat. § 518.551, subd. 5(b) (2004), represent a rebuttable presumption and "shall be used . . . when establishing or modifying child support."  Id. at subd. 5(i) (2004).  If a district court deviates from the guidelines when setting or modifying a support obligation, the court must make detailed written findings on factors set forth in Minn. Stat. § 518.551, subd. 5(i). 

            As discussed above, appellant's income from his future job is uncertain.  If appellant receives a different income at his new job, then his original child-support obligation might fall outside of the presumptive statutory guidelines and would require detailed findings to support the deviation.  Id.  Therefore, the district court erred by automatically reinstating appellant's original support obligation, and the new obligation should be determined once appellant's future income is set.

3.         Motion to Strike

            Appellant also moves to strike substantial portions of respondent's pro se brief, arguing that it addresses issues outside the scope of this appeal and refers to matters from outside the record.  While appellant is accurate in his description of some of respondent's statements, it is unnecessary for us to go line-by-line to strike unsupported or irrelevant matters from respondent's brief.  In reaching our decision, we only considered facts and evidence supported by the record. 

            Reversed; motion denied.