Marriage of Anderson v. Anderson

421 N.W.2d 410, 1988 Minn. App. LEXIS 201, 1988 WL 25138

• Court: Court of Appeals of Minnesota
• Decided: March 29, 1988
• Docket: C4-87-1465
• Status: Published

Opinions

OPINION

SCHUMACHER, Judge.

This is an appeal of a court order automatically reinstating an original support order after a temporary reduction due to economic adversity.

Appellant argues the trial court abused its discretion in reinstating the original decree and finding him liable for arrearages of $8,258.

FACTS

The marriage of appellant Mark Neis Anderson and respondent Kathleen Mae Anderson was dissolved on January 13, 1983. Respondent has physical and joint legal custody of the parties’ two children, currently 16 and 17. Pursuant to their stipulation, appellant was to pay $400/month as child support. That stipulation was signed by the parties on December 17, 1982. In January of 1983, appellant lost his $30,000/year job, in part, because of his recurring problems with alcohol. He was unemployed for 9 months in 1983, 7-1/2 months in 1985 and 3-V2 months in 1986. His subsequent jobs at Color Tile, Travel Host Motel and Best Buy Co. paid significantly less than his previous employment. Appellant’s gross income was $12,-886 in 1984 and $13,208 in 1985. His income was estimated to be $10,000 in 1986 and $14,200 in 1987.

Appellant’s support payments have been erratic at best. In November of 1983 he paid $2,500 as past due support with proceeds from the sale of his homestead.

Pursuant to a stipulated agreement between the parties, appellant’s support obligation was reduced to $190/month for six months to permit him time to get back on his feet. Subsequent rulings by a referee in May of 1985 and a judge in March of 1986 reduced his obligation to pay to $200/month and $50/month respectively while accumulating the remainder of his obligation as arrearages.

As calculated by Hennepin County Support and Collections Services, his arrearag-es are as follows:

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ISSUES

1. Did the trial court abuse its discretion in reducing, then reinstating appellant’s child support obligation?

2. Did the trial court err in refusing to forgive appellant’s support arrearages?

ANALYSIS

I.

Determination of child support lies within the discretion of the trial court and that decision will not be reversed absent a clear showing of an abuse of discretion. Reck v. Reck, 346 N.W.2d 675 (Minn.Ct.App.1984).

Here the trial court has established a pattern of permitting appellant to temporarily reduce his support payments during times of economic adversity while accumulating arrearages on that portion of his obligation which was not paid. The October 1986 order permitted a six month reduction of payment with the question of arrearages deferred until a later hearing. The April 1987 judgment from which he now appeals permitted a temporary six month reduction of support to $250/month. Indeed, the only reduction in appellant’s support obligation occurred as the result of a stipulation between the parties which was not imposed by any court, and a six month reprieve from February to August 1987. The six month reduction was not a modification within the meaning of Minn. Stat. § 518.64. Given the appellant’s extended periods of unemployment and the decrease in his annual salary since the dissolution decree, and given the needs of the children, the trial court’s decision seems both prudent and equitable. Permitting reduced payments provided some measure of relief for appellant and some financial assistance for the children while preserving their economic interests through the accumulation of arrearages. It does not appear that this solution constituted an abuse of discretion.

Appellant can always petition the court for an extension of the reduced obligation or for another reduction should circumstances so warrant at some future date.

II.

A party seeking forgiveness of ar-rearages must prove the failure to pay was not willful. Minn.Stat. § 518.64, subd. 2.

In this case, the trial court found appellant had been capable of paying more child support than he actually had paid despite his employment situation, thus his failure to pay was deemed willful. Appellant’s testimony established he could have paid an average of at least $190/month from June of 1984 to the present time, during which time he averaged payments of only $79/month. To the extent he was able to provide more support than he actually paid, his failure to fulfill his support obligation was willful. The burden of proof on this claim lies with appellant and he has not adequately demonstrated that he could not comply with the dissolution decree even taking into account his fluctuating income and his necessary living expenses.

Finally, it must be noted that courts are justifiably reluctant to forgive arrearages:

[A] trial court’s power to forgive ar-rearages should be exercised cautiously upon satisfactory evidence, especially when forgiving past due child support, where the interests of the children are paramount.

Swanson v. Swanson, 372 N.W.2d 420, 424 (Minn.Ct.App.1985).

DECISION

Affirmed.

CRIPPEN, J., dissenting.