In re the Marriage of: Carol Ann Weeks n/k/a Carol Ann Von Ende, petitioner; Appellant, vs. Kevin Robert Weeks, Respondent.

In re the Marriage of: Carol Ann Weeks n/k/a Carol Ann Von Ende, petitioner; Appellant, vs. Kevin Robert Weeks, Respondent. A06-2147, Court of Appeals Unpublished Decision, October 2, 2007.

This opinion will be unpublished and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

A06-2147
 

In re the Marriage of:
Carol Ann Weeks n/k/a Carol Ann Von Ende,
petitioner; Appellant,

vs.

Kevin Robert Weeks,
Respondent.
 

Filed October 2, 2007

Affirmed as modified

Klaphake, Judge

 

Wright County District Court

File No. 86-F1-95-001788

 

Carol Ann Von Ende, 19332 Keystone Road, Milaca, MN  56353 (pro se appellant)

 

Geoffrey W. Tenney, 24 East Division Street, Buffalo, MN  55313 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge; Lansing, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Carol Ann Weeks, now known as Carol Ann Von Ende, challenges the district court's order denying her motion to modify respondent Kevin Robert Weeks' child support obligation and to amend language related to the emancipation of the parties' disabled child.  Because there has not been a substantial change in circumstances that renders the original support order unreasonable and unfair, the district court did not abuse its discretion by refusing to modify respondent's support obligation.  We therefore affirm the district court's support order.  But because the district court's order regarding the emancipation language is unclear, we modify the court's order to conform to the statutory language. 

D E C I S I O N

            Modification of Support Obligation

            A child support order may be modified upon a showing of substantially changed circumstances that make the terms of the child support order unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2 (2004).[1]  The moving party has the burden of proving that a child support award should be modified.  Bormann v. Bormann, 644 N.W.2d 478, 481 (Minn. App. 2002).  The district court's order regarding support will not be reversed absent an abuse of discretion.  Id.   

            It is presumed that there has been a substantial change in circumstances . . . and the terms of a current support order shall be rebuttably presumed to be unreasonable and unfair if . . . the application of the child support guidelines . . . to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $50 per month higher or lower than the current support order[.]

 

Minn. Stat. § 518.64, subd. 2(b)(1).  But where the parties have stipulated in the dissolution judgment to a level of child support that is lower than the guidelines amount, modification must be based on whether there are circumstances rendering the existing agreement unfair and unreasonable, and not merely on the grounds that the support award is more than 20% or $50 lower than the presumed guidelines amount.  O'Donnell v. O'Donnell, 678 N.W.2d 471, 477 (Minn. App. 2004).

            Here, the parties originally stipulated to a child support award that was lower than the presumed guidelines amount because respondent also agreed to pay one-half of daycare costs and private school tuition.  Although the children now attend public school and are no longer in day care, the parties do incur expenses through TEFRA (Tax Equity and Fiscal Responsibility Act of 1982) for a personal care attendant for the youngest child, who is severely disabled.  Respondent pays $250 a month toward this expense; appellant pays $34, because she is given credit for providing health insurance.  This type of non-cash contribution, similar to insurance or the fair rental value of the family home, can constitute child support.  Moylan v. Moylan, 384 N.W.2d 859, 865 (Minn. 1986).

            When respondent's support obligation of $767 and TEFRA payment of $250 are taken into consideration, he makes a total monthly payment of $1,017, and guidelines support for the three children would be $1,028.89.  Appellant has failed to establish that the existing support obligation is unfair or unreasonable, and we therefore affirm the district court's order denying an increase in support.

            Amendment of Emancipation Clause

            An appellate court reviews the modification of the duration of a child support order for an abuse of discretion.  State ex rel. Jarvela v. Burke, 678 N.W.2d 68, 70-71 (Minn. App. 2004), review denied (Minn. July 20, 2004). 

            The statutory definition of "child" includes "an individual who, by reason of physical or mental condition, is incapable of self-support."  Minn. Stat. § 518.54, subd. 2 (2004).  When an adult child is incapable of self-support because of a mental or physical condition, the parent continues to have a support obligation.  Maki v. Hansen, 694 N.W.2d 78, 84-85 (Minn. App. 2005).  Whether a child is capable of self-support depends on the facts and circumstances of each case, something that may not lend itself to resolution before a child is on the point of presumed emancipation.  Id. at 83, n. 3.  Here, appellant sought to amend the dissolution judgment to reflect the reality that the parties' youngest child, who is severely disabled, is unlikely to ever become self-supporting.

            The district court's order on this point is not clear; the court denied appellant's motion but stated that "[the child] is diagnosed with Down's Syndrome.  Pursuant to the Judgment and Decree entered February 12, 1996, [r]espondent's child support obligation for [the child] will continue until [the child] is self-supporting."  The language of the dissolution judgment is "[c]hild support shall continue until the minor child reaches the age of 18 or graduates from high school, whichever occurs later but no later than age 20; sooner dies, is emancipated, or is self-supporting or until further order of this Court."  This language suggests that support would end if the child dies, is emancipated, or is self-supporting before the age of 18 or graduation from high school.  The point of appellant's motion for an amendment to the language of the dissolution judgment was to make specific the continuation of child support for the youngest child beyond the usual age of emancipation.  The court's order both denying appellant's motion and requiring the support obligation to continue until the child is self-supporting is confusing. 

            We therefore modify the district court's order to clarify that respondent's support obligation for the youngest child will continue unless the youngest child becomes self-supporting.

            Affirmed as modified.       

 

[1] The child support provisions have been transferred to a new chapter, Minn. Stat. ch. 518A (2006), but the effective date of the new chapter is January 1, 2007, after the date of this order.