Williams Divorce and Family Law

Gerald O. Williams, Attorney

Recent Court Rulings

Minnesota Association for Justice Divorce and Family Law Columns

Summer 2005

Court of Appeals

Child Support

In Re the Marriage of Maschoff v. Leiding

(Filed May 31, 2005)

In 2002, the court adjudicated Respondent Father to be the subject minor child’s father, and adopted a stipulation between Appellant Mother and Respondent to share legal and physical custody of their minor child. The stipulated order provided for zero child support, based upon relatively equal incomes and relatively equal parenting time. When Appellant sought child support in 2003, contending that the 2002 stipulated order was a reservation – not a determination – of child support, the child support magistrate ruled that Appellant had failed to establish a basis to modify support. The Court of Appeals affirmed, ruling that the child support magistrate correctly construed the 2002 order as a determination, not a reservation, of child support.

When Appellant sought to modify child support in 2004, the district court denied the motion based upon res judicata, ruling that support had already been litigated. The Court of Appeals reversed, observing that “child support” may refer to the monetary amount an obligor pays under the guidelines, or more broadly to refer to other child-care costs. The Court of Appeals ruled that the previous litigation was regarding the more broad issue of “child support” and reversed the res judicata holding because the more specific issue of monetary child support, and the applicable changes of circumstances pertaining thereto, had not yet been litigated.

Death of Marriage Dissolution Party

In Re the Marriage of Rettke v. Rettke

(Filed June 7, 2005)

Husband and Respondent Wife agreed in mediation to a divorce settlement. Husband signed a Marital Termination Agreement that incorporated the terms of the mediated settlement, but died before Respondent signed the Agreement. Therefore, no divorce decree was entered. Respondent sought and obtained entry of the divorce judgment, based upon the mediated settlement terms. Appellant Bank, the personal representative for the Husband’s estate, sought to vacate the divorce judgment, and the district court refused.

The Court of Appeals reversed and vacated the divorce judgment, ruling that the divorce judgment had been improperly entered since the district court, not just the parties, must approve an agreement before it is incorporated into a court judgment.

Spousal Maintenance

Attorney Fees

In Re the Marriage of Schallinger v. Schallinger

(Filed July 12, 2005)

Appellant Wife appealed from the award of joint legal and physical custody of her and Respondent Husband’s two children, the denial of spousal maintenance, the determination of child support, the verbatim adoption of Respondent’s proposed findings and the denial of attorney’s fees. The Court of Appeals affirmed in all respects.

The Court of Appeals observed that, in deciding the issue of spousal maintenance, consideration of a part-time working spouse’s full-time income for purposes of determining the spouse’s financial resources, does not constitute imputation of income.

Regarding attorney’s fees, the Court of Appeals noted that Appellant had paid her attorney’s fees by liquidating non-marital savings and by obtaining an advance from the marital estate. Having paid her fees, the Court of Appeals ruled that she was not in need of an award of fees, and affirmed the district court’s denial of need-based fees.

Paternity

In re the Custody of the Child of Williams v. Carlson

(Filed August 2, 2005)

Appellant Mother and Respondent Father executed a Recognition of Parentage when the subject minor child was born in 2000, and Respondent was listed on the child’s birth certificate. Contrary to the force and effect of the Recognition of Parentage that was never revoked nor sought to be vacated, the district court allowed genetic testing. The genetic testing, the results of which were received after the trial concluded, excluded Respondent as the child’s biological father.

The district court awarded sole legal and physical custody of the child to Respondent. The Court of Appeals affirmed, noting that the genetic testing was not permitted, given the valid, unrevoked Recognition of Parentage. The Court of Appeals observed that Appellant’s recourse in the circumstances was to move to vacate the Recognition of Parentage. The Court of Appeals further observed, however, that because there was no other presumed father, and Respondent received the child into his home and openly held out the child as his child, that the district court result would still have been affirmed.

Appellant’s argument on appeal that she should have been accorded a new trial (due to the new evidence of the genetic test results) was rejected because of the absence of a presumed father, and because the error of allowing the genetic testing, and the result that the genetic testing excluded Respondent as the biological father, were harmless and non-prejudicial.