After a hiatus last week, the Round-Up is back with five unpublished opinions from the Court of Appeals this week (four of which I’ll be reviewing), as well as one from the week prior. We also have a decision from the Minnesota Supreme Court in Rew v. Bergstrom, which I’ll cover in a lengthier post on Monday rather than trying to squeeze it into a Round-Up.
This week’s cases are fairly wide-ranging, and most well worth the read.
Two Cases on Contempt
(See the above litigant expressing his contempt for the judicial process)
In re the Marriage of Miller vs. Miller, A13-1867 (May 5, 2014). A lesson that sometimes “close” can be “close enough”–at least to avoid a contempt citation. The parties divorced in 2005, and Husband was ordered to pay temporary spousal maintenance and child support in addition to a hefty property settlement totaling several hundred thousand dollars. Husband’s business went south in the Great Recession, and he received a child support modification. At the same time, Wife moved to find Husband in contempt, citing roughly $40,000 in spousal maintenance arrearages. Husband countered that he did not have the means to pay the maintenance obligation, and that much of the $495,000 property settlement paid to Wife since the divorce had been borrowed from his parents. Husband conceded that there were several occasions when he had repaid loans to his parents (which had been used to pay Wife’s property settlement) rather than pay spousal maintenance.
The District Court denied Wife’s contempt motion, holding that Husband’s “finances, his pre-payment of the [property settlement], and his on-going contributions toward his maintenance obligation,” demonstrated that Husband’s failure to pay was not willful.
On Appeal, the Court affirmed the District Court over Wife’s arguments that the District Court erroneously considered her “need” in deciding the contempt motion (the lower court observed that Wife’s property payments exceeded what she would have received in spousal maintenance), and in failing to account for the loan repayments Husband made to his parents in lieu of paying spousal maintenance. The Court of Appeals concurred with the lower court that Husband’s payment of his property settlement demonstrated that “he is not maliciously withholding money from [Wife]” and, presumably, that his failure to pay was therefore not “willful.” The Court of Appeals also failed to find error in the District Court’s use of a different income figure for Husband than that found by a Child Support Magistrate in computing Husband’s income.
In re the Custody of I.J.H. and M.J.S.-H., A13-0908 (May 5, 2014). A pro se appeal, so the legal issues aren’t particularly well developed. Although Father raised a number of issues on appeal from his contempt and parenting time modification motions, my favorite by far is his request that Mother be held in contempt on two issues: 1) failing to pay her agreed-upon one-third of the cost of a name change fee for one of the children (roughly a $100 issue); and 2) failure to take the mandatory parenting education course. The District Court denied Father’s motion on both issues, finding that Mother had, in fact, paid the name-change fee, and had signed up for (albeit not taken) the requisite parenting education course. The Court of Appeals affirmed, holding that “there is no evidence in the record that Mother failed to pay the fee or refused to attend the parenting-education course.” What doesn’t appear to have been disputed is that Mother’s failure to take a court-ordered parenting-education course could, at least theoretically, be enforced in a civil contempt motion by Father.
The Court of Appeals also affirmed the denial of Father’s other motions as “restrictions” on Mother’s parenting time unsupported by evidence of endangerment. (One would expect that we’ll see fewer of these restriction-based arguments with the passage of HF 2722–now Minn. Sess. Law 197.)
(Nearly) $20,000 Maintenance Award Reversed
In re the Marriage of Rye vs. Cook, A13-1414 (May 5, 2014). This week’s longest decision at 23-pages, most of which is devoted to whittling down a $19,500 spousal maintenance award to Wife.
The parties married in 1985 and separated in 2011, when both were in their early 60’s. Husband worked as an attorney in Minneapolis for 27-years, until his retirement in 2007 to practice law in Florida.
Following trial, the District Court awarded Wife $19,500 per month in permanent spousal maintenance, based on Husband’s net income of $33,397 per month and Wife’s expenses of $14,001 per month.
In reversing the amount of spousal maintenance, the Court of Appeals found error in two aspects of the lower Court’s decision:
First, the District Court relied on Husband’s income from his pension and retirement accounts, while also dividing those same accounts as an asset–the classic “double-dip.” Applying Lee v. Lee, the Court of Appeals observed that “pension benefits awarded to a party as property in a dissolution cannot be included in the income of a party when determining that party’s maintenance obligation.” 775 N.W.2d 631 (Minn. 2009).
While the Court of Appeals is right as a matter of general principle (and particularly as to the defined benefit plans here), there is a fly in the ointment in applying the decision to broadly. To the extent Husband had been drawing down defined contribution plans (e.g. 401(k)s, IRAs, etc.) the District Court would only have “double-dipped” to the extent that it counted withdrawals from the principal balance of these plans. If Husband was living off the income from, say, his IRA, that income could appropriately be included in a spousal maintenance calculation without any double dip. See Justice Dietzen’s concurrence in Lee.
Second, the Court of Appeals found fault with several thousand dollars of Wife’s living expenses, finding several expenses unduly speculative or unsupported by the evidence (e.g. utility expenses for a house that had not yet been purchased and funds to buy a new vehicle).
The Court of Appeals did, however, affirm the District Court’s finding that Wife, who was 62 and had not worked outside the home since 1996, did not have the ability to generate income of her own given the date of her degree, her long absence from the workforce, and her health.
The Court of Appeals also affirmed the allocation of most of the parties’ debts to Husband, where Husband “acknowledged that may of the [credit card] charges included his girlfriend.” While making a specific finding of dissipation or depletion, the District and Appellate Courts both noted the “non-martial purpose” of many of Husband’s debts in assigning them to him.
Who’s at (de)Fault
(With apologies for the bad pun.)
In re the Marriage of Shores vs. Shores, A12-2245 (May 5, 2014). The parties married in 2004 and Wife petitioned for divorce in 2011. When trial was held in early 2012, the Court pointed out that Husband, who was blind and disabled, had not filed an Answer to Wife’s Petition. The Court gave Husband the opportunity to file an Answer, but when several months passed, the Court held Husband in default and prohibited him from further participating at trial.
In its default decision, the District Court invaded Husband’s non-marital property (allocating $100,000 of it to Wife) and ordered Husband to pay above-guideline child support. The District Court also found that Wife qualified as a putative spouse, over Husband’s objections that the marriage was invalid because one of the signatories to the marriage certificate was not present at the ceremony. Husband appealed.
The Court of Appeals affirmed, dropping a footnote to question whether Husband, whom the District Court found in default, had properly preserved any of his issues for appeal. Procedural issues aside, the Court held that the invasion of Husband’s non-marital property was appropriate, even in light of Husband’s disability, where:
[Wife] “was the personal care attendant/caregiver for [Husband] from at least the time of their marriage until separation, on call 24 hours a day, seven days a week.” …[and] as a result of her duties caring for appellant, [Wife] was not able to be employed outside the home or accumulate any retirement funds or other assets… [Wife also] had significant student-loan and credit-card debt that she was not able to “pay down” due to her responsibilities in caring for [Husband].
The Court of Appeals also pointed out that Husband received $4,000 per month in social security and disability benefits, while Wife’s income was only $1,144 per month.
Similar facts supported the award of an upward deviation in child support in order to “prevent either parent or the joint children from living in poverty.”
Husband’s putative spouse argument also failed. Though Wife acknowledged that one of the signatories on the marriage certificate had not been at the wedding (a fact she didn’t learn until after the ceremony), the Court of Appeals concluded that Wife could still qualify as a putative spouse because she had a good faith belief that the parties were married:
There is nothing in the record indicating that Wife understood the marriage to be invalid because the person who signed the marriage certificate was not the person who performed the marriage ceremony.
More Parenting Consultant Confusion
In re the Marriage of Thompson vs. Thompson, A13-1349, A13-1657 (April 28, 2014) . Adding yet another non-precedential decision to the growing body of case law on Parenting Consultants (which, incidentally, is the subject of an article I authored for The Hennepin Lawyer this month).
While there were a number of issues on appeal (including motions by Husband to modify custody, modify spousal maintenance, and reverse an award of attorney’s fees) the Parenting Consultant (PC) issue is the one I’ll focus on.
The parties divorced in 2007, and shared joint legal custody of their three sons while Wife had sole physical custody. In 2008, physical custody of the two older sons was modified and granted to Husband, while Wife retained custody of the youngest boy. The parties were also directed to retain a PC consistent with their Judgment and Decree, which they didn’t do until 2010, when only the youngest son remained a minor. Under the terms of the parties’ Judgment and Decree, the PC was prohibited from modifying custody. But in 2011, the PC altered the schedule (the decision notes by agreement of the parties) to a week-on-week-off schedule. A year later, in 2012, the PC modified parenting time a second time to grant Husband 11 days out of every 14.
Wife moved to discharge the PC and void the PC’s 2011 and 2012 parenting time modifications. The District Court granted Wife’s motions on the theory that the PC’s prior parenting time modifications were de facto modifications of custody made in violation of the authority granted to the PC.
The Court of Appeals affirmed, accepting the District Court’s theory that the PC had exceeded his authority, and that discharge was thus appropriate consistent with the child’s best interests. See Szarzynski v. Szarzynski, 732 N.W.2d 285 (Minn. Ct. App. 2007). No explanation is given for how Wife’s apparent agreement to the 2011 modification factored into all of this.
The Appellate Court also affirmed the District Court’s refusal to grant Husband an evidentiary hearing relative to his request to change custody, holding that all of Husband’s allegations were simply a continuation of old issues previously considered by the Court in 2008.
(A worthwhile side-note on Husband’s spousal maintenance modification appeal: in addition to the PC issues, the Court of Appeals also affirmed the lower Court’s refusal to impute full-time income to Wife, where Wife: “is approximately fifty years of age and has only a high school diploma” and where “full-time positions are not available in [Wife’s] field.” c.f. Passolt v. Passolt, 804 N.W.2d 18 (Minn. Ct. App. 2011). The Court also refused to impute additional investment income to Wife, where Wife chose to place “the bulk of her cash settlement in a retirement annuity” making “the funds not available to her without penalty.”)
That wraps it up for this week. As I mentioned, Monday we’ll have analysis of the Supreme Court’s decision on 50-year Orders for Protection.