Court Holds that a Mother’s Educational Neglect Support a Change in Custody

Court Holds that a Mother’s Educational Neglect Support a Change in Custody

In Higgins v. Higgins, A12-2127 (Minn. Ct. App. Jan. 27, 2014), the Minnesota Court of Appeals affirmed the district court’s decision granting the father primary physical custody of his young daughter in large part because of the child’s excessive tardiness and absenteeism while in her mother’s custody, with the parties sharing joint legal custoday.

The appellate court held that the district court had not erred in finding that there was a significant change in circumstances since the mother was given custody, as required by the statute for modification of child custody, Minnesota Statute 518.18. The appellate court found that the there was evidence that the child had significant problems in attendance at school when in her mother’s custody and that her mother had difficulty in complying with the previous agreement on parenting time. The district court had found that the mother had educationally neglected her daughter, by allowing her to miss school and come to school late on numerous occasions.

The district court also considered the thirteen statutory factors for consideration in determining the best interest of the child for the purpose of child custody. Minnesota Statute 518.17. It found that six factors favored neither parent; those factors were the parents’ wishes regarding custody; the reasonable preference of the child if the child is old enough to express a preference; the closeness of each parent’s relationship with the child; the ability and willingness of the parents to give the child love, affection, and guidance and to raise the child in the child’s culture or religion; the child’s cultural background; and the effect on the child of domestic abuse. It also found that the mother’s background as the child’s primary caretaker favored her, but found that six other factors favored the father, including the child’s relationship with a sibling, the child’s adjustment to home, school, and community, the length the child has lived in a stable, satisfactory environment; the permanence of the family unit; and the mental and physical health of all individuals involved.

The court noted that the father was in a long-term (five year) relationship with a woman with whom he had a three year old child. The court found the fact this young child had a good attendance record at pre-school was a positive factor in favor of the father. The court also noted that the mother had physical and psychological ailments that raised questions about the stability of the child’s home environment. The court also noted that the mother had difficulty in providing the father with parenting time, but the father did not indicate that he would have any problems with cooperating with the mother’s visitation. Further, the appellate court held that the child would have a better opportunity for success in both academics and development if the father had custody.

The mother had argued that the father’s criminal history was a significant factor supporting her custody of the child. However, the court noted that the criminal history involved a sexual offense that occurred when he was thirteen, and that the district court had considered that evidence. Further, the guardian ad litem had recommended the father have physical custody.

Anyone who is considering moving for changing an order regarding child custody should consult with an experienced family law attorney.

Modifying Child Support and Spousal Maintenance, and Awarding Attorneys’ fees

Modifying Child Support and Spousal Maintenance, and Awarding Attorneys’ fees

The recent case of Ferris v. Szachowicz, #A12-2154, A13-0558 (Minn. Ct. App. Dec. 2, 2013) dealt with an ex-husband’s effort to reduce the amount of spousal maintenance and child support because his business, plastic surgery, allegedly suffered in the economic downturn. Because the statute provides for reducing spousal maintenance because of changed circumstances, he argued that the reduction in plastic surgeries, the recession, increasing tax arrearages, and business loan debt met the statutory criteria for changed circumstances.

The Court of Appeals began by noting that, on motions to modify child support, the court has broad discretion and its decision will only be reversed if it is against both the facts in the record and logic. Using this standard the court affirmed the district court’s decision. Finding it was supported by the record and the law. The court held that the district court acted within its discretion in calculating the husband’s income using a four-year average although the wife argued that including 2007 income was unreasonable. In this case, the husband had wanted to use a five-average and the wife preferred a three-year average, so the court’s decision to use a four-year average actually split the difference in the party’s position. The court noted that it would not include 2011 income because the data was incomplete. Although the wife argued that the income was on an upward trajectory, so included the year 2007 pulled the average down too far, the court held that the district within its discretion in choosing a time range for calculating an average when income fluctuates.

The court affirmed the district court’s decision denying the ex-husband’s first motion to modify spousal maintenance. Under Minnesota Statute 518 Section 39A, subd. 2 (2013), a party needs to show both a substantial change in circumstances and that the changed circumstances render the existing award both unreasonable and unfair. The court found the district court was within its discretion to find that the ex-husband failed to show a substantial change in circumstances because he did not produce loan documents to support his testimony about loan repayments.

The court then affirmed the district court’s decision granting the ex-husband’s second motion to modify spousal maintenance, finding the court made a correct decision despite procedural flaws. The court found that using a second motion to make the decision was an incorrect procedure because of the legal doctrine of res judicata. Nonetheless, the court found that the court could consider the evidence that should have been submitted with the first motion because rulings on support are not final decisions, and courts are required to respond to individual circumstances. The court emphasized that there had been substantial changes in the husband’s income from the time when the support order was first entered, so that the income was inadequate to support the parties’ lifestyle during marriage. The court also noted that the ex-wife was not working to her potential, in determining that continuing maintenance at the existing level was both unfair and unreasonable.

The court also upheld the district court’s denial of need-based attorney fees, provided in Minnesota Statute Section 518.14, subdivision 1 (2013). Although the court is required to consider the statutory factors, the lack of specific findings on each factor is not sufficient to reverse the decision as long as the decision indicates that the record included the parties’ finances and the court considered the relevant factors. The court noted that the district court had indeed made many findings on the parties’ finances, and had found that the wife had the ability to earn $42,500 annually, if she worked full-time.

The court also upheld the denial of attorney fees based on the husband’s conduct. Under the same fee provision, the court has discretion to award attorney’s fees on a party who unreasonably increases the length or expense of the proceeding. The court held that it was within the trial court’s discretion to consider the fact that the ex-wife’s refusal to agree to the appointment of “a neutral” in determining that her actions also increased the length or expense of the proceeding. Further, the ex-husband’s discovery requests related to the statutory grounds for modification, so they were not unreasonable.

Anyone who is considering moving for additional or reduced spousal maintenance should consult with an experienced family law attorney.

Stutler v Moreno

Stutler v Moreno

In Stutler v. Moreno, A13-0056, A3-0460 (Minn. Ct. App. Feb. 3, 2014), the Minnesota Court of Appeals issued several significant decisions regarding modifications of child support and spousal maintenance, including retroactive child support and child maintenance, life insurance requirements, and imputing spousal income.

Retroactive child support and spousal maintenance: The court held that an award of retroactive child support and spousal maintenance was impermissible. In this case, the court had reserved spousal maintenance and child support because the husband was unemployed at the time of the court order. Here, the husband began his new job on October 2nd, and the wife did no object to this employment and requested child support and spousal maintenance on November 18. The court held that child support and maintenance would begin on November 18, the day of the request, denying any child support and maintenance for the period prior to November 18th.

Child support in excess of guidelines: The court remanded the child support award because it was in excess of the net basic support guidelines and lacked the required findings for any child support in excess of those guidelines. The court held that the statute, Minnesota Statute 518A.43, sudivision 1(1) 58A.43, requires the court to consider factors including (1) each parent’s earnings, income and resources; (2) any extraordinary financial needs and resources, physical or emotional condition, and educational needs of the children; and (3) the standard of living the child would enjoy if the parents lived together. As a result, the district court was required to reconsider the child support award and issue specific findings.

Life Insurance: The court also reversed the district court’s order requiring the father to maintain $750,000 in life insurance. He had $200,000 in life insurance, as required by the original dissolution order, and obtained another $462,000 in life insurance from his employer, for a total of $662,000, leaving a balance of $88,000. The court held that the district court is required to make findings regarding the availability, insurability, and cost of insurance, and, reduce the insurance required, to “that available at a reasonable rate.”

Modification: The court upheld the district court’s decision granting the ex-wife’s motion to modify spousal maintenance and child support in light of the ex-husband’s new employment. Under Minnesota Statute 518.39A, subdivision. 2 (2013), a party needs to show both a substantial change in circumstances and that the changed circumstances render the existing award both unreasonable and unfair. The court held that a change in the circumstances of one party can be sufficient to justify a modification.

The court rejected the husband’s argument that the modification was beyond the parties’ marital standard of living. The husband had earned over $300,000 annually before the separation, but his income had declined to $140,000 when he started a new job in October 2011. However, by August 2012, he had started new employment paying $228,000 annually with a signing bonus and other potential bonuses. The court held that the district court did not abuse its discretion in finding that the earlier award of maintenance did not reflects the parties’ marital standard of living. However, the court found that the trial court erred in considering evidence from mediation regarding the parties’ marital standard of living without consideration of the mediation evidence although it could reopen the record for additional evidence.

The court held that the district acted within its discretion by awarding spousal maintenance of $6,500 base amount plus 25% of gross income, including cash bonuses earned over $228,000, up to a maximum of $20,000. The court noted that the bonuses had not been included in the base maintenance, and the ex-wife’s reasonable needs included parenting the parties ‘child with Down Syndrome, and the parties’ marital standard of living, as well as the cap on the amount and the fact it was contingent on the funds being paid.

The court did find that the district court erred in ‘calculating the father’s ability to pay the excluding the $668.97 monthly payment that the father paid for TEFRA, a form of medical assistance for children with disabilities. The court that this expense was so substantial that it could not be excluded.

Imputing income to an ex-spouse: The court upheld the trial court’s determination that, in calculating spousal maintenance and child support, $6,000 annual income would be imputed to the ex-wife. Although a vocational expert had found that she could earn $22,000, the court found that her responsibilities for caring for her eleven year old child with Down Syndrome precluded such full-time employment. However, the court rejected the ex-wife’s argument that no income should be imputed, noting that she could work at least four hours a day, given the child was in school for seven hours a day and also received personal care services.

Attorneys fees: The court also upheld the district court’s denial of need-based attorney fees, provided in Minnesota Statute Section 518.14, subdivision 1 (2013). The wife had $300,000 in her bank account and was expecting to receive $200,000 from the sale of the house. The court did uphold some conduct-based attorneys’ fees.

Anyone who is considering moving for additional or reduced spousal maintenance should consult with an experienced family law attorney.