Author Archive for admin

The tone of your divorce is important…

October 15, 2013Alimony, Alternative Dispute Resolution, Attorney's Fees, Child Custody, Child Support, Divorce, Spousal MaintenanceLeave a comment

Divorce is one of the greatest stresses a human being can experience. While divorce is a personal decision for adults, it is a wrenching series of crises for their children.

When divorce strikes, the process of disassembling the family places tremendous demands on marital partners. Almost everything in your life that has been stable now must be reorganized. And this uncertainty can leave you in a state of chronic anxiety. But the people who take it hardest are your children. They didn’t pick the marriage, they have no say in the divorce, and sometimes parents ind it impossible to understand what divorce means to them.

Divorce is both a legal process as well as a psychological process. Beyond the obvious financial costs of a divorce are the emotional and opportunity costs that result. The legal process is important but the psychological process and how it is played out by the couple largely determines the tone and the nature of the divorce This is true regardless of whether the divorce involves only financial issues such as property division and alimony (spousal maintenance) or whether it also involves child related issues such as custody, parenting time, and child support.

If the divorce begins badly, it will usually be a long and nasty process. But, if it begins with consideration of the other person, there is a good chance that it will end amicably and constructively. The key is in controlling your emotions and trying understanding the emotional triggers of the other party at the beginning of the process.

An amicable and constructive divorce is possible only when both partners are ready to negotiate. Often times, one person has been thinking about starting a divorce for a long time, and the other person is shocked when he/she find this out.

If you are the one who wants out, you have to give your partner time to adjust, time to mourn and time to explore his/her own possibilities. If you push too fast, your spouse will retreat to the perceived safety of a lawyer who he/she thinks will “protect” her interests. If this happens, it will only increase the time and cost of the divorce. Being patient and considerate in the beginning will speed up the process and the ending.

You and your partner will probably have many misunderstandings and conflicts as you move forward as parents who are apart. It’s not easy for either of you, and your partner is sure to be a jerk at some point, make your life hard, or just complicate everything.

The most important thing to remember is that everything is in flux. What is true today won’t be true tomorrow or next week or next month. The situation is one that will be constantly evolving. It’s easy to feel as though the frustrations that are causing difficulties now will always be the case, but the truth is, that if you are patient, you will likely see things change.

Patience is one of the most effective tools in your possession. By staying calm, considerate, and focused you can gain an advantage that translates into a favorable deal.

Agreement is reached only after each party is ready to move from the wishful into the realm of the possible. Change takes place over time in small, constant, incremental movements. You cannot rush the process and the tone is important.

Appellate Court orders father to continue support for 32-year-old disabled son

March 16, 2011Child SupportLeave a comment

The StarTribune just reported on a case I won before the Minnesota Court of Appeals:

“The Minnesota Court of Appeals this week rejected a wealthy man’s claim that he shouldn’t have to pay part of his disabled adult son’s care because he pays high taxes and his son is eligible for government support.

The court’s decision upheld Hennepin County District Judge Kevin Burke’s order that Timothy Hanratty must continue to pay $2,300 a month in child support, which his ex-wife in turn pays to the group home where their 32-year-old son, Travis Hanratty, lives.

Although he made more than $1 million a year in 2007 and 2008, Timothy Hanratty argued that his child support is no longer necessary because Travis has moved to a place where eligibility for government reimbursement would make him self-supporting.

The monthly group home bill is $6,500 for Travis, who requires intensive care and is therefore still eligible for child support under the law.

‘Essentially, [Hanratty] argued that it was unfair to require him to fund his son’s care when the taxpayers could do it,’ the Appeals Court decision said. But the court agreed with Burke’s reasoning ‘that it is not unreasonable or unfair to require a father with over $1.2 million in annual income’ to help support his disabled child ‘rather than shifting the burden to a state that is cutting programs for [its] most vulnerable citizens.’

Hanratty said Wednesday that he wants the best for his son and foots the bill for his health insurance, but he does not believe he is being treated equally.

‘If you walk around and talk to anyone who has a handicapped child in this state, you would find that none of them pay child support to the state,’ said Hanratty, founder and president of the Plymouth-based benefits consulting and brokerage firm Hanratty and Associates.

Hanratty argued to the court that the state doesn’t require parental contributions to offset a child’s public assistance once they reach adulthood. But both Burke and the Appeals Court concluded that the father’s payments were still-needed child support and not a parental contribution.

After Timothy and Jean Hanratty divorced in 2001, Travis, who has Down syndrome and was then 21, lived with his mother. Travis moved to the group home in March 2009, and Jean Hanratty began paying Timothy Hanratty’s payments to the group home, with public assistance covering the remainder.

Timothy Hanratty argued in part that because he paid high income taxes, he was funding his son’s care twice.” Abby Simmons, StarTribune – March 16, 2011.

The full story can be found at:

http://www.startribune.com/local/118090529.html

“How can I get spousal maintenance (alimony)?”

October 8, 2010Alimony, Divorce, Spousal MaintenanceLeave a comment

Spousal maintenance awards can be difficult to predict, because there are no Guidelines, as with child support, and both the amount and duration are within the broad discretion of the Court. In determining spousal maintenance, the court considers the needs of a the requesting party and the ability of the other party to pay.

Spousal maintenance decisions are based on the following main factors:

Length of the marriage;
The standard of living during the marriage;
The income of both parties;
The reasonable living expenses of both parties;
The age of both parties;
The property apportioned to each spouse in the divorce;
The education and employability of the spouse seeking maintenance; and
Any disability status affecting the employability of the spouse seeking maintenance.

“I need my spouse to pay my attorney’s fees.”

January 2, 2010Attorney's Fees, DivorceLeave a comment

There are two forms of attorney’s fees that may be awarded in a dissolution proceeding: need-based fees and conduct-based fees.

In regard to need based fees, Minnesota law provides that a Court shall award attorney’s fees and costs where the moving party demonstrates that the fees are necessary for a good faith assertion of that party’s rights, and that they will not contribute unnecessarily to the length and expense of litigation. See Minn. Stat. § 518.14 Subd. 1. The party claiming need-based fees must also show that the party from whom fees are sought has the ability to pay. Id.

More specifically, Minnesota law dictates that a Court shall award need-based attorney’s fees in a dissolution action where: 1) the fees are necessary for a good faith assertion of the party’s rights and will not contribute unnecessarily to the length and expense of litigation, 2) the party from whom fees are sought has the means to pay them, and 3) that the party seeking fees does not have the means to pay them. Minn. Stat. § 518.14, subd. 1. Central to a need-based award of attorney’s fees is the need of one party balanced against the other’s ability to pay. Meyers v. Meyers, 409 N.W. 2d 532, 535 (Minn. Ct. App. 1987).

It should be noted that even where need is demonstrated, need-based fees may be denied where, “[m]uch of [a party’s] attorney’s fee liability was the product of unnecessary litigation that did not rise to the level of good faith.” Peterka v. Peterka, 675 N.W. 2d 353, 360 (Minn. Ct. App. 2004). However, an award of attorney’s fees may be made regardless of whether the party requesting fees is likely to prevail in their claims. See O’Neil v. O’Neil, 210 N.W. 2d 237 (Minn. 1973).

Nevertheless, in addition to insufficient income, an inability to pay may be shown where the supposed ability is premised solely on the liquidation of capital assets. See Beck v. Kaplan, 566 N.W. 2d 723 (Minn. 1997) (award of attorney’s fees not an abuse of discretion where wife would be required to liquidate the limited capital assets available to her for her retirement), see also Karg v. Karg, 418 N.W. 2d 198 (Minn. Ct. App. 1988) (award of attorney’s fees was appropriate where paying attorney’s fees would require wife to liquidate a substantial portion of her property award and husband had greater ability to pay).

Moreover, where there is a wide discrepancy in the parties’ incomes and the other party’s ability to pay has been shown, a Court may abuse its discretion if it does not award a party attorney’s fees. See, Petschel v. Petschel, 406 N.W. 2d 604 (Minn. Ct. App. 1987) (remanding for an award of attorney’s fees where one party lacked an employment history or sufficient assets), see also Nash v. Nash, 388 N.W. 2d 777 (Minn. Ct. App. 1986) (trial court abused its discretion in failing to award attorney’s fees where wife could not pay her monthly expenses and had incurred substantial debt); Cummings v. Cummings, 376 N.W. 2d 726 (Minn. Ct. App. 1985) (trial court abused its discretion where it awarded wife only 25% of fees and costs where husband had substantial non marital assets).

“My last attorney put a lien on my property.”

December 15, 2009Attorney's Fees1 Comment

Attorney charging liens are based on principles of equity, and, as a result, the nature of such a lien and the procedure for enforcing it differ from most other liens. See Minn. Stat. § 481.13.

Pursuant to Minn. Stat. § 481.13 subd. 1(a), with regard to liens for attorney’s fees, the statute provides, in relevant part:

An attorney has a lien for compensation whether the agreement for compensation is express or implied (1) upon the cause of action from the time of the service of the summons in the action, or the commencement of the proceeding, and (2) upon the interest of the attorney’s client in any money or property involved or affected by any action or proceeding in which the attorney may have been employed, from the commencement of the action or proceeding…

While the amount of an attorney’s lien may be summarily determined by the court, Minn. Stat. § 481.13 subd. 1(c), the Minnesota Court of Appeals has held that, “before an attorney’s lien can be granted and enforced, the reasonable amount of the attorney’s services must be fairly litigated.” Gaughan v. Gaughan, 450 N.W. 2d 338, 343 (Minn. Ct. App. 1990) (holding that a former client may litigate the fee in an action to establish an attorney’s lien by cross-examining attorney’s regarding the work billed)(emphasis added); see also Roehrdanz v. Schlink, 368 N.W.2d 409 (Minn. Ct. App. 1985). In fact, the amount of an attorney’s lien cannot be determined until it has been fairly litigated. See Boline v. Doty, 345 N.W.2d 285 (Minn. Ct. App. 1984). This has been a long standing and established rule in Minnesota case law. See Krippner v. Matz, 205 Minn. 497, 287 N.W. 19 (1939).

Application of the attorney-lien statute is a question of law. See Boline v. Doty, 345 N.W.2d 285, 288-90 (Minn. Ct. App. 1984). However, the reasonable value of attorney fees is a question of fact to be determined by the Court. See Ashford v. Interstate Trucking Corp., 524 N.W.2d 500, 502 (Minn. Ct. App. 1994); see also Thomas A. Foster & Associates, LTD v. Paulson, 699 N.W.2d 1 (Minn. Ct. App. 2005).

The central case deciding the reasonable value of attorney’s fees is Thomas A. Foster & Associates v. Paulson. Id. In Paulson, appellant challenged respondent’s motion to establish an attorney’s lien on the grounds that Respondent had committed legal malpractice and breached his fiduciary duties to appellant. Id. The Minnesota Court of Appeals found that, “litigating the number of hours worked, the reasonableness of an hourly fee, or the existence of a contract…is not unduly burdensome in a summary proceeding…”. Id. at 7. However, the summary nature of lien proceedings made the litigation of “complex questions of profession negligence” inappropriate in an action to establish an attorney’s lien. 699 N.W. 2d at 8. Central to the Court’s decision were concerns that the legislative intent providing for a summary proceeding would be thwarted by, “impermissibly transform[ing] a summary-lien proceeding into a lengthy malpractice trial.” Id.

Yet, even accepting that summary proceedings are not the appropriate forum for litigating malpractice claims, the Court of Appeals asserted the notion that, “alleged misconduct may be relevant to calculating attorney’s fees.” Id. at 7 (citing Rice v. Perl, 320 N.W. 2d 407 (Minn. 1982) (for the longstanding doctrine that an attorney may forfeit attorney’s fees for a breach of fiduciary duty). Thus, circumstances may arise when—regardless of a separate malpractice claim—a court may take attorney misconduct into account when determining whether or not to establish an attorney’s lien, or the amount of that lien. Id; see also In re Lee’s Estate, 214 Minn. 448, 460, 9 N.W.2d 245, 251 (1943) (“It is equally well settled that an attorney at law who is unfaithful in the performance of his duties forfeits his right to compensation. An attorney is an officer of the court, sworn to aid in the administration of justice and to act with strict fidelity to both his clients and the courts. Unquestioned fidelity to their real interests is the duty of every attorney to his clients. When a breach of faith occurs, the attorney’s right to compensation is gone”).

Minnesota courts have not directly addressed the issue of determining the value of an attorney’s lien in the presence of misconduct. In typical cases, disputes as to the value attorney’s fees may be resolved, “based on the terms of the fee provisions of the retainer agreement.” 699 N.W. 2d at 6. However, insofar as misconduct is relevant to the calculation of attorney’s fees, it can be inferred that instances of attorney misconduct are not ordinary circumstances. Were the converse true—and cases of misconduct continued to be governed solely by the provisions of the retainer agreement—it would be difficult to understand how a court might take attorney misconduct into account in establishing an attorney’s lien. As such, the value of a lien in these cases cannot likely be determined solely by reference to the retainer agreement. Looking outside typical cases to those without a retainer agreement, “the amount of the lien is to be determined by the reasonable value of the services rendered.” Id.

The only other guidance Minnesota Courts have offered in determining the “reasonable value” of an attorney’s lien have been in the context of dividing contingency fees between multiple firms. See Ashford v. Interstate Trucking Corp. of America, Inc., 524 N.W. 2d 500 (Minn. Ct. App. 1994). While many of the criteria used in dividing contingent fees are not applicable to the current case (e.g. the proportion of funds invested by each firm, the length of time each firm spent on the case), one of the six criteria is particularly on point: “the quality of representation.” Id. at 503. Read together the case law suggests that in the presence of attorney misconduct, a court may look to the “reasonable value of the services rendered.” 699 N.W. 2d at 6. Moreover, to the extent Ashford clarifies the meaning of “reasonable value,” the “quality of representation,” is at least one relevant factor.

In determining the presence of attorney misconduct the Minnesota Rules of Professional Conduct are particularly salient. The Minnesota Rules of Professional Conduct require an attorney to, “provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for representation.” 52 Minn. Stat., Rules of Prof. Conduct, Rule 1.1. Additionally, an attorney must, “act with reasonable diligence and promptness in representing a client.” 52 Minn. Stat., Rules of Prof. Conduct, Rule 1.3.

In the context of family law cases, the Minnesota Supreme Court stated, in dicta, that misconduct in “important family law matters” such as domestic abuse and child custody may constitute a failure to meet the obligations of competence. See In re Reinstatement of Mose, 754 N.W. 2d 357, 363 (Minn. 2008) (denying attorney’s petition for reinstatement on the grounds that he had fail to meet the reinstatement conditions or demonstrate sufficient moral change necessary to reinstatement).

In summary, the law in Minnesota regarding attorney’s liens provides that the Court must determine the quality and reasonable value of the services charged and can only establish such a lien accordingly.

Cost of Living Adjustments

November 2, 2009Alimony, Child Support, Spousal MaintenanceLeave a comment

In Minnesota, child support and spousal maintenance obligations are subject to biennial cost-of-living adjustments based on the Consumer Price Index. See Minn. Stat. § 518A.75 Subd. 1. Generally, the implementation of a cost-of-living adjustment, “attempts to prevent an award of child support or maintenance that was determined to be appropriate at the time it was set…from becoming inequitable due to an inflation-based degradation of its relative value.” Grachek v. Grachek, 750 N.W. 2d 328, 332 (Minn. Ct. App. 2008) review denied.

Notably, cost-of-living adjustments are distinct from a modification of spousal maintenance, and no burden exists on the obligee to show that the current maintenance award is unreasonable and unfair. Id. At 331. Instead, the obligor has the burden of demonstrating why the cost-of-living adjustment should be reduced or eliminated. See Braatz v. Braatz, 489 N.W. 2d 262 (Minn. Ct. App. 1992) review denied.

In order to maintain the continuing integrity of spousal maintenance and child support awards against the effects of inflation, Minnesota law states that a cost-of-living adjustment shall take effect unless the obligor establishes an insufficient increase in income to support the adjustment. Minn. Stat. 518A.75 Subd. 3. In contrast, the waiver or reduction of the cost-of-living adjustment by the Court is merely permissive, and a court is not required to reduce or eliminate a cost-of-living adjustment except where the clear facts support that an obligor’s only present source of income does not provide for a COLA. See Mower County Human Services v. Meyer, 543 N.W. 2d 682, 685 (Minn. Ct. App. 1996) (holding that a district court abused its discretion in applying a cost-of-living adjustment to a child support award where the award was based on income derived solely from fixed annuity payments).

Further, the court has broad discretion in implementing cost-of-living adjustments and is not limited only to a consideration of whether or not an obligor’s income specifically provides for a cost-of-living adjustment. Rather, the court may look to any other “increase in income” as well as considering the obligor’s “total financial situation.” McClenahan v. Warner, 461 N.W. 2d 509, 511 (Minn. Ct. App. 1990).

Deviating from the Child Support Guildelines

October 1, 2009Child SupportLeave a comment

Under Minnesota law, a rebuttable presumption exists that child support should be calculated in accordance with Minnesota’s income shares model as contained in Minn. Stat. § 518A.35. However, a trial court possesses broad discretion in setting an award of child support. See, Rose v. Rose, 765 N.W. 2d 142 (Minn. Ct. App. 2009); see also, Rutten v. Rutten, 347 N.W. 2d 47, 50 (Minn. 1984). Paramount in all family law decisions involving children is the best interests of the child. See, Hunley v. Hunley, 757 N.W. 2d 898, 901 (Minn. Ct. App. 2008).

To this end, Minnesota law provides that a court may deviate from the child support guidelines, inter alia, to encourage “prompt and regular payments of child support and to prevent either parent or the joint children from living in poverty.” Minn. Stat. § 518A.43. It is important to note that the reasons listed above are simply two reasons among others that a court may deviate from the child support guidelines. Id. Indeed, courts have deviated from child support guidelines on a number of grounds, among them, maintaining the standard of living enjoyed by a child during the marriage. See, Riley v. Riley, 385 N.W. 2d 883 (Minn. Ct. App. 1986).

When determining whether to deviate from the child support guidelines a court must take into account the statutory factors contained in Minn. Stat. § 518A.34, including each parent’s gross income, the parental income for child support (PICS), each parent’s proportional share of PICS, etc. Further, in determining that a deviation from the guidelines is appropriate, the court must also take account of:

(1) all earnings, income, circumstances, and resources of each parent, including real and personal property, but excluding income from excess employment…;

(2) the extraordinary financial needs and resources, physical and emotional condition, and education needs of the child to be supported;

(3) whether the child resides in a foreign country…;

(4) which parent receives the income tax dependency exemption and the financial benefit the parent receives from it;

(5) the parent’s debts as provided in subd. 2; and

(6) the obligor’s total payments for court-ordered child support exceed the limitations set forth in section 571.922.

Minn. Stat. § 518A.43.

Where the court determines that a deviation is appropriate, it must make written findings regarding: each parent’s gross income, each parent’s PICS, the amount of the child support obligation computed under section 518.34, the reason for the deviation, and how the deviation serves the best interests of the child. Minn. Stat. 518A.37 Subd. 2; see also, Morrison County v. Watland, 448 N.W. 2d 71 (Minn. Ct. App. 1989) (reversing a trial court’s upward departure from child support guidelines due to a lack of finding); Johnson v. Johnson, 352 N.W. 2d 819 (Minn. Ct. App. 1984) (reversing an award of excess support when not supported by specific findings).

Because of the recent passage of the new child support guidelines, relatively little case law exists discussing deviations under the 2007 statute. However, it is clear that in deviating from the child support guidelines a district court must both take the best interest of the child into account and make written findings on said best interests. See, Fields v. Nwokeuku, Not Reported, 2009 WL 1684463 (Minn. Ct. App. 2009).

Antenuptial Agreements (Prenup)

September 25, 2009Antenuptial Agreements, PrenupsLeave a comment

According to the Minn. Stat. §519.11, a valid antenuptial agreement has the following requirements:

Parties must be of legal age
Agreement must be entered into before date of marriage
There must be a full and fair disclosure of earnings of both parties
Each party must have had an opportunity to consult with their own counsel
The agreement must be in writing and witnessed by 2 people and acknowledged before a notary public. The notary public may be one of the witnesses.

If an antenuptial is properly executed, it functions as prima facie proof of the matter contained in it and the burden of proof rests on the party challenging the agreement.

Antenputial agreements are favored under Minnesota law. If the parties stand in a confidential relationship and the trial court finds that the agreement is supported by adequate consideration, then the burden is on the party challenging the agreement. The consideration in the case would be the mutual waiver of interest in the other’s pre-marital property.

Procedural and Substantive Fairness

The Minnesota Supreme Court held that antenuptial agreements allocating marital property between the parties are not prohibited by the statute and that the validity of such agreements depends upon common law requirements of procedural and substantive fairness. See McKee-Johnson v. Johnson, 444 N.W. 2d 259 (Minn. Ct. App. 1989).

Procedural Fairness

The common law procedural fairness requirements are essentially the same as the statutory requirements for a proper execution of an antenuptial agreement. Each party must fully and fairly disclose their earnings and property to the other party and each party must have been afforded an opportunity to meet with counsel prior to the inception of the agreement. Id. While it is prudent to make the disclosures in writing and to attach to the agreement a statement from each party regarding their assets, income and liabilities, it is not required. Id.

Under common law, when a confidential or fiduciary relationship exists, courts should determine whether the agreement was “equitably and fairly made by considering:

(1) Whether there was fair and full disclosure of the parties’ assets. There are statements in the agreement that indicate that affair and full disclosure was made, and Charles attached a partial list of his nonmarital assets to the document. You may want to explore this issue with Elizabeth, but it appears that this requirement has been met.

(2) Whether the agreement was supported by adequate consideration. Likely there was sufficient consideration in this case.

(3) Whether the parties had knowledge of the material particulars of the agreement and of how those provisions impacted the parties’ rights in the absence of the agreement. Both parties were represented by counsel, so this requirement was met.

(4) Whether the agreement was procured by an abuse of fiduciary relations, undue influence or duress. You would want to check with Elizabeth, but there is nothing in the document to indicate that it was not fairly procured.

In re Estate of Kinney, 733 N.W.2d 118 (Minn. 2007).

Substantive Fairness

The common law substantive fairness requirements mean that a trial court must review the document both at the time of inception of the agreement and at the time of enforcement to ensure that enforcement of its terms is fair. See McKee-Johnson, 444 N.W.2d at 259. In order to avoid overreaching by one party, the Court inquires into the facts bearing on the reasonable expectations of each signatory as to the scope and effect of the agreement in the event of a dissolution. Id. The Court is required to review and make findings about:

(1) Whether the births of children have resulted in significantly changed circumstances which would warrant further substantive review; and

(2) Whether there have been any significant change in circumstances which make enforcement of the agreement “oppressive” and/or “unconscionable.”

There are no precise guidelines regarding what makes an agreement substantively unfair, but rather the Court have held that it hinges on specific facts in each case. An agreement that alters a party’s statutory rights is not substantively unfair if the result is foreseeable. Pollock-Halvarson v. McGuire, 576 N.W. 2d 451 (Minn. Ct. App. 1998).

“Can a court order me to undergo a psych eval?”

April 14, 2009Child Custody, DivorceLeave a comment

The controlling principle in all child custody determinations is the best interests of the child. See Schallinger v. Shallinger, 699 N.W.2d 15, 19 (Minn. Ct. App. 2005). The “best interests of the child” are defined by statute as meaning “all relevant factors,” including the 13 factors listed in the statute. See Minn. Stat. § 518.17, Subd. 1.

The mental health of each parent is an important issue in every child custody and visitation dispute, and the statute explicitly lists this among the 13 factors to be considered. See Minn. Stat. § 518.17, Subd. 1(9).

The case law in Minnesota provides that the Court has broad discretion to analyze a parent’s mental health as part of its determination of custody and visitation. See Meyer v. Meyer, 375 N.W.2d 820, 826 (Minn. Ct. App. 1985) pet. for rev. denied (Minn. Dec. 30, 1985) (The district court has considerable discretion when weighing custody factors relating to mental health); see also Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989) (The district court has broad discretion when determining custody of children); Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995) (The district court is also afforded broad discretion in visitation matters).

The reason for the broad discretion afforded to the District Court in custody and visitation disputes is based on the public policy that, with regard to issues of custody and visitation, the ultimate question is what is in the child’s best interests. See Minn. Stat. § 518.175, Subd. 5. To that end, safety and security top the list detailing the best interests of a child.

While evaluators can recommend psychological testing, the ultimate responsibility to determine the issues to be considered in deciding custody and visitation rests with the Court. In fact, the statute authorizing the investigation and reports available to the Court states that “[i]n contested custody proceedings…the court may order an investigation and report concerning custodial arrangements for the child.” Minn. Stat. § 518.167, Subd. 1 (emphasis added).

Rule 35 of the Rules of Civil Procedure also supports the request for a psychological examination and two requirements before the court can order a psychological examination. See Minn. R. Civ. Proc. 35.01. First, the mental condition of the opposing spouse must be in controversy, and second, good cause must be shown. See Haynes v. Anderson, 304 Minn. 185, 232 N.W.2d 196 (1975); see also Morey v. Peppin, 353 N.W.2d 179 (Minn. Ct. App. 1984) (case involving a child custody dispute in which the mother was required to furnish access to her mental health records, since her mental health was in controversy in the proceedings).

According to the Court in Haynes, an adverse examination cannot be permitted unless the person’s ability to be the custodial parent is in controversy. See Haynes v. Anderson, 304 Minn. 185, 232 N.W.2d 196 (1975).

The Court in Haynes also explained that showing of good cause requires the demonstration of a factual basis to the court as to why the other spouse’s mental condition is in controversy, and that the inconvenience of the examination will be minimal and/or that the inconvenience of the examination is outweighed by the potential impact of the examination on the issues involved. See Haynes v. Anderson, 304 Minn. 185, 232 N.W.2d 196 (1975).

Once the psychological evaluation has been ordered and performed, the examined parent may request a copy of a detailed written report of the examining physician setting out his/her findings and conclusions, together with the reports of all earlier examinations of the same condition. See Minn. R. Civ. Proc. 35.02(a) (2008). After such request and delivery, the examined party, upon request, is entitled to receive from the other party a like report of any examination, previously or thereafter made, of the same mental condition. See Minn. R. Civ. Proc. 35.01(a). If the other party refuses to deliver such a report, there may be sanctions issued. See Minn. R. Civ. Proc. 35.01(a) (2008).

While an order by the Court requiring a party to undergo a psychological evaluation will not by itself, prevent abusive behavior, it will provide the Court and its agencies with important information that can be used to create a custodial and parenting time arrangement for the child that will inhibit and avert dangerous situations for the minor child. See Kuebelbeck v. Humphrey, 402 N.W.2d 202, 204-205 (Minn. Ct. App. 1987) (district court may severely restrict visitation when noncustodial parent has denounced custodial parent and disturbed child during visits), review denied (Minn. April 29, 1987); see also D.A.H. v. G.A.H., 371 N.W.2d 1, 4 (Minn. Ct. App. 1985), pet. for rev. denied (Minn. Sept. 19, 1985) (evidence of abuse supported the district court’s decision which restricted visitation and required the father to submit to psychotherapy prior to further consideration of the father’s visitation status).

The decision to order a psychological evaluation and release of anger management counseling records should be made responsibly; however, a judge or judicial officer cannot be held liable to anyone in a civil action for “acts done in the exercise of judicial authority.” See Linder v. Foster, 209 Minn. 43, 45, 295 N.W.2d 299, 300 (1940) (quoting Stewart v. Cooley, 23 Minn. 347, 350 (1877)). Judicial immunity extends to persons who are integral parts of the judicial process. See Myers through Myers v. Price, 463 N.W.2d 773, 775 (Minn. Ct. App. 1990), pet. for rev. denied (Minn. Feb. 4, 1991).

Minnesota law even extends quasi-judicial immunity to court-appointed psychiatrists, physicians, psychologists, and social workers. See Sloper v. Dodge, 426 N.W.2d 478, 479 (Minn. Ct. App. 1988); see also In re Scott County Master Docket, 618 F. Supp. 1534, 1575 (D. Minn. 1985) (court-appointed psychologist extended quasi-judicial immunity), aff’d in part and rev’d in part, Myers v. Morris, 810 F.2d 1437 (8th Cir.), cert. denied, 484 U.S. 828, 108 S. Ct. 97 (1987). Judicial immunity applies to determinations and acts in a judicial capacity, “however erroneous or by whatever motives prompted.” Linder v. Foster, 209 Minn. 43, 46, 295 N.W.2d 299, 300 (1940) (quoting Stewart v. Case, 53 Minn. 62, 66, 54 N.W. 938, 938 (1893)).

Child Support Based on Potential Income

March 19, 2009Child SupportLeave a comment

Under the laws in effect as of 2007, child support is based on “parental income for child support” or “PICS.” See Minn. Stat. § 518A.26, Subd. 15.

Gross income under the new law means: the gross income of a parent calculated per the new criteria plus social security or veterans’ benefit payments received on behalf of the child plus the potential income of the parent, if any, as determined under the law minus spousal maintenance that any party has been ordered to pay minus the amount of any existing child support order for other nonjoint children. See Minn. Stat. § 518A.26, Subd. 8.

The new law allows consideration of “potential income” in calculating child support. This is income that it attributed to a party when a parent is voluntarily unemployed, underemployed, or is employed on a less than full-time basis, or there is no direct evidence of any income. The statute provides 3 methods for determining potential income. Determination of potential income must be made according to one of three methods, as appropriate: (1) the parent’s probable earnings level based on employment potential, recent work history, and occupational qualifications in light of prevailing job opportunities and earnings levels in the community; (2) if a parent is receiving unemployment compensation or workers’ compensation, that parent’s income may be calculated using the actual amount of the unemployment compensation or workers’ compensation benefit received; or  (3) the amount of income a parent could earn working full time at 150 percent of the current federal or state minimum wage, whichever is higher.  See Minn. Stat. § 518A.32, Subd. 2.

If a party fails to serve and file a financial affidavit with their initial pleadings the court shall set income for that parent based on whatever credible evidence is before the court or by setting the potential income for that parent under Minn. Stat. § 518A.32. See Minn. Stat. § 518A.28. The documents that must be provided include pay stubs for the most recent three months, employer statements, or statements of receipts and expenses if self-employed. It also includes relevant copies of recent federal tax returns including W-2 forms, 1099 forms, unemployment benefit statements, workers’ compensation statements and all other documents evidencing earnings or income. See Minn. Stat. § 518A.28.

The court can take an average of a party’s income over a period of years to determine the level of income on which child support should be established. See Veit v. Veit, 413 N.W.2d 601 (Minn. Ct. App. 1987).

Income can also be established through life style. This is especially true in situations where an individual is self-employed. The theory is that the standard of living enjoyed by the individual exceeds the level of income claimed by the individual. See Tuthill v. Tuthill, 399 N.W.2d 230 (Minn. Ct. App. 1987).

A court’s finding on income for the purpose of a child support award must have a reasonable basis in fact to withstand an attack on appeal. See Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. Ct. App. 1987). A key aspect of income is its periodic nature. Generally, if a payment is periodic, it is income. See Herrley v. Herrley, 452 N.W.2d 711, 714 (Minn. Ct. App. 1990).

A district court’s findings on net income for purposes of child support will be affirmed if those findings have a reasonable basis in fact and are not clearly erroneous. See State, County of St. Louis ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. Ct. App. 1999). A determination of an obligor’s income for purposes of child support is a finding of fact and will not be altered on appeal unless clearly erroneous. See Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn. Ct. App. 2002).

« Prev 123 Next »