Marriage of Gully v. Gully

GILBERT, Justice

(dissenting).

I respectfully dissent. The majority determines that Fjerstad is entitled to retroactive modification of child support because the requirements of Minn.Stat. § 518.64, subd. 2(d)(1) (1998) were met. Because Fjerstad was at no time precluded from serving a motion, I disagree.

Minnesota Statutes § 518.64, subd. 2(d)(1) provides for retroactive modification of a child support order if “the party seeking modification was precluded from serving a motion by reason of * * * a material misrepresentation of another party * * * and that the party seeking modification, when no longer precluded, promptly served a motion * ⅜ * .” Thus, unless precluded from doing so, Fjerstad had an obligation to bring a motion for retroactive modification in a timely manner. Under the statute, if a party fails to timely bring a motion for modification, the district court may not impose retroactive modification of the child support obligations. At no time was Fjerstad precluded from serving a motion for modification. Accordingly, even assuming that the majority correctly determined that Gully materially misrepresented his income, the district court erred in awarding retroactive modification.

Fjerstad suspected as early as April 15, 1991 that Gully was concealing a substantial part of his income from her and the court. However, she said nothing to the court nor did she ask any questions regarding these suspicions at the April 15 hearing. Instead, she allowed the court to base Gully’s child support obligations on the income that he represented to the court at that time because she could not confirm her suspicions.

As the years went by and the couple’s son grew up, Gully continued to pay his court ordered child support obligation. Fjerstad continued to accept Gully’s payments without questioning the propriety of the amount. While he continued to pay his court-ordered child support obligations, Gully never filed his updated income infor*827mation as required. Despite her suspicions, Fjerstad never asked the county whether they were receiving updated income information from Gully, nor did she ask Gully for updated information.

In 1994, Gully built a new home valued at $110,000. Although the record does not clearly indicate when Fjerstad learned of the new home, the couple’s son repeatedly visited Gully between the time the new home was built and Fjerstad filed her motion for modification. This fact certainly appears to confirm Fjerstad’s long-standing suspicions that Gully was concealing his income, yet Fjerstad still failed to request updated information from the county or Gully.

Instead, Fjerstad waited to contact the county until September 24,1996, two years after Gully’s new home was completed. Gully and Fjerstad later stipulated that Gully’s annual income varied between $21,367 and $34,385 between 1993 and 1995. In August 1997, nearly eight years after the child support modification order went into effect, the trial court awarded $23,335.28 to Fjerstad as retroactive child support.

The majority now holds that a party is “precluded from bringing a motion for modification at an earlier time when the party demonstrates to the district court that it would have been unreasonable to do so given the circumstances.” While I do not disagree with this definition of preclusion, under these facts I believe the majority errs in determining that it would have been “unreasonable” for Fjerstad to bring a motion prior to September 26, 1996. It is undisputed that Fjerstad had suspicions that Gully was concealing his income since April 1991, 5½ years before she even requested that the county review Gully’s obligation. Although Fjerstad was aware of the 1991 order requiring Gully to submit his income information to the county, she never contacted the county to report her suspicions or to find out if Gully was complying with the April 1991 order. In fact, despite her continued contact with Gully following their marital dissolution, Fjer-stad never even requested income information from Gully himself.

Rather than following the statutory limitations, the majority instead crafts a results-oriented decision. There is no doubt that Gully acted in direct contradiction to the April 1991 order and his failure to provide the required information should not be condoned. There is also no doubt that Fjerstad is a sympathetic party who was not represented by counsel in 1991 and subsequently raised the couple’s son with meager support from Gully. These facts, however, do not justify departure from the statute.

Public policy, determined by the legislature, encourages finality in judicial determinations. This policy is clearly expressed in the requirements of Minn.Stat. § 518.64, subd. 2(d)(1), which allows retroactive modification of child support obligations only in very limited circumstances. These circumstances have not been met under these facts. For 5½ years, Fjerstad had reasonable notice that Gully’s financial situation may have changed dramatically, yet she did nothing to investigate or request information from Gully, nor did she ever ask the county or the court for a review. Now Gully must pay a lump sum of over $23,000, in presumably after-tax dollars, for retroactive child support. In failing to bring her motion in a timely fashion, Fjer-stad also worked hardship on herself and needlessly deprived the couple’s son of needed and deserved support. The majority, by failing to properly apply its own definition of preclusion, fails to honor the statutorily mandated limitations on retroactive modifications. Instead, the definition of misrepresentation has been stretched to new limits in support of retro-activity.

Because I can only conclude that Fjer-stad had a choice to raise her concerns regarding concealed income, but chose not to do so in a reasonably timely manner, I would hold that she was not precluded *828from bringing her motion for modification, and thus that MinmStat. § 518.64, subd. 2(d)(1) is not applicable to this case. The trial court also abused its discretion in awarding attorney fees. Accordingly, I would affirm the court of appeals.