After a few weeks without any new cases from the appellate courts, there are two unpublished decisions this week, both of which are worth the read.
In re the Matter of Dakota County et al. v. Gillespie, A13-1240 (March 31, 2014). A case that could alternatively be titled one county’s attempt to reverse County of Grant v. Koser, the case that permitted child support overpayments from derivative social security benefits to be applied against future child support payments. 809 N.W.2d 237 (Minn. Ct. App. 2012). The facts (which are remarkably similar to those in Koser) are roughly as follows:
[Father] and [Mother] are the parents of twins born in 1999. The children live with [Mother]. By 2012, [Father]’s monthly child-support obligation was $1,977. He was then receiving $1,872 monthly in Retirement, Survivors, and Disability Insurance (RSDI) benefits; [Mother] received the children’s monthly derivative benefits of $1,748. For six months, February through July, 2012, [Mother] received both child support from [Father] and derivative RSDI benefits on behalf of the children from Social Security.
Citing Koser Father brought a motion to offset the derivative Social Security benefits the children received against his monthly child support obligation. See Minn. Stat. § 518A.34. Father also sought to have his child support over-payment (for the months in which Mother received both full support payments and derivative benefits) applied against his future child support obligation. The Child Support Magistrate granted both requests, and the County appealed, advocating for a return to the rule established under an earlier version of the child support statute in which overpayments in excess of any child support arrearages are treated as a “windfall to the children.” Holmberg v. Holmberg, 578 N.W.2d 817 (Minn. Ct. App. 1998). (See the baby, pictured above, enjoying his windfall.)
Though I’d really love to have seen the County’s brief, the Court of Appeals rejected all its arguments as to why Koser should be overruled, including various citations to federal law. Ultimately, the Court’s decision favored substance over form, taking a fairly practical approach despite what appear to have been interesting legal arguments from the County.
The Court also took time to delve deeper into a policy argument that only warranted a footnote in Koser: that the “windfall to the children” approach advocated by the County would only serve to encourage obligors with Social Security applications pending to stop paying their child support obligations so as to reap the full benefit of any lump-sum payments (which would be applied against arrearages but not against future payments).
So Koser remains good law, and lump-sum, derivative Social Security payments can be applied both against an obligor’s child support arrearages and against future support child support payments.
In re the Marriage of Busswitz v. Johnson, A13-1355 (March 31, 2014). While appeals of custody modifications (or denied custody modifications) are fairly common and seldom enlightening, Busswitz is actually worth mulling over.
Father brought a motion to modify custody alleging that the child was afraid of, and constantly fought with, Mother’s new husband. The district court appointed a Guardian, who reported that the child “did not act nervous, afraid, or anxious around [Step-Father].” Based largely on the Guardian’s report, the Court denied Father’s motion without holding an evidentiary hearing.
What’s most interesting about Busswitz is not the denial, but the District Court’s refusal to hold an evidentiary hearing.
As Round-Up readers are likely aware, custody modifications are a two-step process. When a parent brings a motion to modify custody, he or she need only present a prima facie case at the outset. Meaning: the Court must accept all the moving party’s allegations as true and determine whether, if proven, they rise to the level of endangerment. See Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471 (Minn. 1981). At this stage, the question isn’t “Who’s telling the truth?” but rather, “Assuming you’re telling the truth, is the child really in danger?” If the facts, when accepted as true, present a case for modification, then the Court is required to schedule an evidentiary hearing where it can weigh the evidence and decide if the modification should be granted.
But this seems to be exactly the opposite of what the District Court actually did in Busswitz. Instead, Father alleged that the child was afraid of step-father. The Guardian reported that the child wasn’t. And the Court credited the Guardian’s report over Father’s allegations, which it was required to accept as true. The Guardian didn’t simply provide “context” to Father’s allegations (which is permissible), she directly contradicted them, and the Court credited her observations over Father’s.
Even more interesting, the Court of Appeals appeared to accept that Father’s allegations would, if proven, have constituted endangerment, it simply held that the Guardian’s report was sufficient to trump his allegations.
All in all, I confess that I feel conflicted about this decision. The take-away seems to be that while an opposing party’s allegations can only provide “context,” a Guardian’s conclusions can actually be used to weigh credibility even before an evidentiary hearing. This may be a case of getting the right answer in the wrong way, but of course we don’t know enough facts to draw any conclusions.
That’s it for this week. On Monday, my thoughts about how to move beyond the same-sex marriage debate, and later this month Family-In-Law will be getting a new look. More to come.