Minnesota Association for Justice Divorce and Family Law Columns

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Spring 2006

Supreme Court

Child Support

In re the Marriage of Gerber v. Gerber

(Filed June 1, 2006)

Obligor Father sought to prevent the county from withholding his income for child support past the ten-year statute of limitations on judgments. The child support magistrate denied Father's request, ruling that automatic wage withholding is an administrative remedy, not a judicial remedy, and therefore not subject to the statute of limitations.

The Court of Appeals reversed, ruling that wage withholding is, in fact, a judicial remedy because the law at the time of the 1982 marital dissolution and child support judgment required a court order to authorize income withholding.

The Supreme Court reversed the Court of Appeals, ruling that the income withholding can be authorized by an administrative agency to recover child support arrearages with no prior judicial approval, and is designed to provide a dispute resolution method outside the judicial process.

Court of Appeals

Pension Interests

In re the Marriage of May v. May

(Filed May 16, 2006)

The parties' divorce decree divided Appellant Wife's federal pension between Appellant and Respondent Husband. Before a QDRO was entered and implemented to divide the pension interest, Respondent died. Respondent's widow sought Respondent's fifty percent share of Appellant's pension. Appellant asserted that Respondent's failure to designate a substitute payee caused Respondent's interest to lapse upon his death. The district court granted Respondent's widow's request.

The Court of Appeals reversed the award of the retirement interest to Respondent's widow personally, ruling that the estate, and not the widow (as personal representative of the estate) was entitled to receive the pension interest. The Court of Appeals affirmed the award of the pension interest to Respondent's estate because no authority precludes entry of a QDRO after the death of the alternate payee and doing so is consistent with the provisions of ERISA.

Marital Property

In re the Marriage of Zander v. Zander

(Filed August 22, 2006)

Appellant Wife, a Mdewakanton tribe member, and Respondent Husband were awarded joint legal and physical custody of their children. On appeal, Appellant asserted that the court gave consideration to Respondent's residence on the Mdewakanton reservation, from which Respondent moved shortly after the marriage dissolution trial. The Court of Appeals affirmed, ruling that Respondent's relocation after the trial was outside the scope of the trial record.

Appellant also sought review of the joint custody award, asserting that the parties could not cooperate on parenting issues without an intermediary. The Court of Appeals affirmed, ruling that the district court's lengthy and detailed findings supported the custody award.

Finally, Appellant challenged the characterization of her Mdewakanton Community per capita payments as marital property. She claimed the payments to be unique to her birthright as a member of the Mdewakanton Sioux, a sovereign nation, and therefore non-marital. The Court of Appeals affirmed, observing that income from even non-marital assets are marital, and Appellant did not claim to have kept the income separate from marital funds. Appellant cited provisions of the tribal code, but the Court of Appeals ruled that such provisions do not apply in the state courts.