ELIAS
v.
SUHR

Minnesota Court of AppealsApr 13, 1999
No. C5-98-1745. (Minn. Ct. App. Apr. 13, 1999)

No. C5-98-1745.

Filed April 13, 1999.

Appeal from the District Court, Olmsted County, File No. F49592.

Raymond F. Schmitz, County Attorney, Thomas P. Kelly, Assistant County Attorney, (for appellant)

Gerald W. Suhr, (pro se respondent)

Sue Carol Elias, (pro se respondent)

Considered and decided by Davies, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.


This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).


UNPUBLISHED OPINION


PETERSON, Judge

Appellant-county alleges an Administrative Law Judge (ALJ) erred in finding that a significant change in circumstances justified a reduction of respondent-father's support obligation and in not making certain findings to justify father's subguideline support obligation or the reservation of his medical support obligation. We affirm.

FACTS

In 1998, respondent-father Gerald Suhr moved to reduce his support obligation from the amount at which it was set in 1995. At the time of his motion, one of father's minor children lived with him and the other lived with his cousin, a respondent in these proceedings. At a hearing, the ALJ ordered father to provide copies of his tax returns for 1995-1997. Father sent copies to the court but not to appellant Olmsted County. Later, the ALJ found a substantial change in circumstances justifying a support modification, set support at a subguideline amount, and reserved father's medical support obligation. After denial of its posthearing motion, the county appealed. Neither father nor his cousin filed a brief on appeal.

DECISION

Child support may be modified if the moving party shows a substantial change in circumstances rendering the existing support award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (1998). Whether to modify support is discretionary with the district court. Moylan v. Moylan , 384 N.W.2d 859, 864 (Minn. 1986). The district court's support determination will be affirmed unless it reached a clearly erroneous conclusion against logic and the facts in the record. Id . The standard of review applicable to a district court's support determination also applies to an ALJ's decision. Borcherding v. Borcherding , 566 N.W.2d 90, 92 (Minn.App. 1997).

1. The ALJ stated the changed circumstance justifying modification was that father had a child living with him who had not previously resided with him. The county challenges this finding, noting father had a child living with him when the 1995 order set his support obligation. The 1995 order, however, required father to pay support for two children in his cousin's custody and contained a credit against father's income because father had custody of one child and because he was supposed to provide medical insurance for the children. Since then, the child living with father in 1995 emancipated, one of the children who lived with father's cousin in 1995 moved in with father, and father no longer gets a credit against his income for a child living with him or for health insurance. Also, the ALJ found that father's annual income has decreased by $8,321 since 1995 and that father's current reasonable monthly expenses exceed his income. The decrease in father's income, and hence in his ability to pay support, combined with the decrease in the need of his cousin due to her only having one child living with her, are circumstances sufficiently changed to allow modification. See Minn. Stat. § 518.64, subd. 2(a) (changed circumstances include, among other things, changes in a party's earnings or needs); Moylan , 384 N.W.2d at 864 (holding substantial change requirement satisfied by factors in Minn. Stat. § 518.64, subd. 2, "alone or in combination").

We note father took a new job in January 1998 and that the ALJ's finding of father's current wage income is apparently based on the gross income figure in the county's hearing fact sheet but with deductions other than those used by the county. We also note the ALJ's findings transpose father's farm income figures for 1995 and 1996. These errors, however, do not impact our decision. See Minn.R.Civ.P. 61 (harmless error to be ignored).

2. The county alleges the ALJ did not make the findings required for a subguideline support obligation. See Minn. Stat. § 518.551, subd. 5(i) (1998) (if support deviates from guidelines, court shall make written findings on various criteria, including those listed at Minn. Stat. § 518.551, subd. 5(c) (1998)). The ALJ's posthearing order states that she considered father's farm rental income in deciding to deviate from the guidelines and that she found father's expenses to be reasonable. Therefore, we reject the county's assertions that the ALJ erred by not considering the farm rental income and by not adequately addressing father's expenses. Also, upon review of the finding of father's basic monthly living expenses, we reject any assertion it is defective under Dean v. Pelton , 437 N.W.2d 762, 764 (Minn.App. 1989).

The county also alleges the ALJ did not make findings on the needs and resources of the child to be supported or balance the parties' interests in deciding how to award the tax dependency exemption. See Minn. Stat. § 518.551, subd. 5(c)(2), (4) (1998) (requiring consideration of needs of child and tax dependency exemption). The county, however, did not provide the ALJ with financial information regarding father's cousin or the child living with her. Nor did the county have father's cousin appear at the hearing. Because the county precluded the ALJ from addressing the costs of raising the child and the tax dependency question, we will not alter the ALJ's ruling. Cf. Taflin v. Taflin , 366 N.W.2d 315, 319 Minn. App. 1985) (party cannot complain if failure to provide information leads to denial of request to reduce support).

3. The county argues that the ALJ did not make findings to support reserving the county's request that father pay $50 per month as medical support. Whether to require father to pay $50 in monthly medical support under Minn. Stat. § 518.171, subd. 1 (1998), is discretionary with the ALJ. See Korf v. Korf , 553 N.W.2d 706, 708 (Minn.App. 1996) (stating decisions regarding medical support are discretionary with district court). The ALJ had to assign or reserve medical support. Minn. Stat. § 518.171, subd. 1(a)(1). Here, father cannot get medical coverage through employment and, given his expenses and income, lacks the ability to make a medical support contribution. The ALJ did not abuse her discretion in reserving medical support.

4. The ALJ's refusal to accept various arguments made by the county in the posthearing proceedings is consistent with case law. See Allen v. Central Motors, Inc. , 204 Minn. 295, 297, 283 N.W. 490, 492 (1939) (issue raised too late when first raised in motion for amended findings).

Affirmed.