Marriage of Kelzenberg v. Kelzenberg

352 N.W.2d 845, 1984 Minn. App. LEXIS 3419
CourtCourt of Appeals of Minnesota
DecidedAugust 14, 1984
DocketC7-84-392
StatusPublished
Cited by3 cases

This text of 352 N.W.2d 845 (Marriage of Kelzenberg v. Kelzenberg) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marriage of Kelzenberg v. Kelzenberg, 352 N.W.2d 845, 1984 Minn. App. LEXIS 3419 (Mich. Ct. App. 1984).

Opinion

OPINION

RANDALL, Judge.

Appellant alleges the trial court erred in forgiving $147.00 of child support arrear-ages and reducing child support by $49.00 per month. We affirm.

FACTS

Appellant, Jean Mary Kelzenberg, and respondent, Bruce Joseph Kelzenberg, were married in November of 1978 and divorced in January of 1983. They have one child who resides with the appellant. At the dissolution trial appellant and respondent stipulated that they were employed at the United States Postal Service and respectively earned a net income of $1,343 and $1,355 per month. Respondent also indicated he received an additional *846 $450 in monthly rental income. The parties allege the rental income was excluded from the net income used to determine respondent’s child support obligation, but was considered in the evaluation of respondent’s reasonable and necessary living expenses. Under the dissolution decree, respondent’s child support obligation was $338 per month.

In October of 1983, appellant moved for judgment on outstanding child support ar-rearages amounting to $1,251. A hearing was held on the outstanding arrearages on December 27, 1983. At the hearing, respondent’s counsel requested the court to forgive a portion of the accumulated ar-rearages and reduce future monthly child support alleging that respondent’s ability to meet his financial responsibilities had diminished by the loss of his monthly rental income.

After respondent was questioned, the trial court judge explained to counsel and the parties that he was going to treat respondent’s request for forgiveness of arrearag-es and reduction in child support as a motion for reduction in child support. Respondent’s counsel did not file a written motion requesting forgiveness of arrearag-es or reduction in child support. Appellant’s counsel did not object to the trial court proceeding in this manner.

At the hearing the respondent submitted a pay stub indicating he earned approximately $533.85 in net income every pay period. This pay stub also allegedly included some compensation for overtime. Respondent is paid twice a month. The difference between respondent’s present income and his income at the time of the dissolution was not explained.

At the time of the dissolution respondent was awarded the homestead. Respondent then had two people renting from him to assist with the payment on the two mortgages on the home. It appears respondent’s monthly rental income amounted to $450. Respondent’s testimony indicated that in about March of 1983 both renters stopped paying rent. One renter moved out, and the other renter, respondent’s brother, had a nervous breakdown, became unemployed, but still lives with the respondent. Respondent also alleges he is helping to support his brother.

Respondent further testified that he is presently in a financial bind because he is late on his mortgage payments and has to work extensive overtime to try and make ends meet. Respondent alleges he has been paying the amount of child support he could afford to pay and claimed appellant did not need the support money, as evidenced by her ability to take leave from work without pay.

At the conclusion of the hearing, the trial court reduced respondent’s future child support payments to $289 per month, a $49 reduction. The $289 per month figure was allegedly reached by making a comparison of respondent’s present income to the child support guidelines. Appellant’s counsel assisted the court in reviewing the guidelines. At the time the dissolution was granted the child support guidelines were not in effect.

The trial court also ordered that respondent’s child support arrearages be reduced by $147. The trial court arrived at the $147 amount by retroactively reducing respondent’s child support obligation by $49 per month for the months of October, November and December of 1983. The court ordered judgment against respondent in favor of appellant amounting to $1,104.

ISSUE

Did the trial court err in reducing respondent’s child support payments by $49.00 and retroactively applying the reduction for October, November, and December of 1983?

ANALYSIS

Appellant claims the trial court was without authority to forgive any portion of the accrued arrearages, contending that an inability to pay support is not a defense to an independent action for judgment on child support arrearages. However, the court did not treat this as an independent action for judgment on child support ar-rearages, but instead acknowledged that it *847 was going to jointly consider respondent’s requests as a motion for reduction in ar-rearages and child support. In this situation respondent’s ability to make child support payments is relevant to the court’s considerations. Weinand v. Weinand, 286 Minn. 303, 175 N.W.2d 506 (1970).

Appellant also claims she was denied a fair opportunity to be heard. An examination of the record indicates appellant’s counsel had an opportunity to question the respondent, and that both parties had an opportunity to present testimony in support of their claims. Appellant’s counsel did not object to the court treating the hearing as a motion for reduction in child support. Counsel did not raise the issue of inadequate notice, nor claim that the motion for reduction in child support should have been submitted in writing. A party’s failure to object or raise an issue in the trial court generally precludes review on appeal. Matter of Welfare of K.T., 327 N.W.2d 13, 16, 17 (Minn.1982); Davis v. Davis, 306 Minn. 536, 538, 235 N.W.2d 836, 838 (1975), appeal dismissed, 426 U.S. 943, 96 S.Ct. 3160, 49 L.Ed.2d 1180 (1976).

The modification of child support is guided by Minn.Stat. § 518.64, subd. 2 (Supp.1983), which in part provides:

The terms of a decree respecting maintenance or support may be modified upon a showing of one or more of the following: (1) substantially increased or decreased earnings of a party; (2) substantially increased or decreased need of a party; (3) receipt of assistance under sections 256.-72 to 256.87; or (4) a change in the cost-of-living for either party as measured by the federal bureau of statistics, any of which makes the terms unreasonable and unfair. On a motion for modification of support, the court shall take into consideration the needs of the children and the financial circumstances of each party’s spouse, if any. A modification which decreases support or maintenance may be made retroactive only upon a showing that any failure to pay in accord with the terms Of the original order was not willful.

The moving party has the burden of proof and must show: “1) a substantial change in circumstances, and 2) that none of his past failures to pay were willful.” Bledsoe v. Bledsoe, 344 N.W.2d 892, 895 (Minn.Ct.App.1984).

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Cite This Page — Counsel Stack

Bluebook (online)
352 N.W.2d 845, 1984 Minn. App. LEXIS 3419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-kelzenberg-v-kelzenberg-minnctapp-1984.