By: Scott Rodman

The purpose of this blog is to follow and track trends and developments in Minnesota Family Law for the general public by providing a synopsis of interesting published cases (and particularly interesting unpublished decisions) from the Minnesota Court of Appeals and the Minnesota Supreme Court from July 2009 forward.  This blog will provide updates on a monthly basis as well as periodic analysis of shifts and changes to the way Courts are handling various issues affecting families and individuals in Family Court.

Hemmingsen v. Hemmingsen

767 N.W.2d 711

This issue in this case is whether the retirement of a person paying spousal maintenance was in bad faith.  In this matter, the person paying maintenance (obligor) asked the district court to terminate his spousal maintenance obligation on his planned retirement date:  his 65^th birthday.

The district court denied his motion, finding that the other party (obligee) had raised a plausible claim that the obligor's retirement was in bad faith, and that the obligor had failed in his burden to show his retirement was not intended to reduce his income available for maintenance.

The Court of Appeals decided that the district court had not made adequate findings supporting its ruling, and sent the case back to the district court for further findings.

It also offered the following reasoning in its decision:

If an obligee raises a colorable claim of bad faith on the part of an obligor who voluntarily retires at a normal or customary retirement age, the obligor must show by a preponderance of the evidence that the change in circumstances was not primarily influenced by a specific intent to decrease or terminate maintenance. Retirement that occurs at a normal or customary retirement age weighs strongly in favor of a finding of good-faith retirement but is not conclusive of good faith. The district court's findings that respondent raised a colorable claim of bad faith, that appellant failed to rebut the claim, that appellant has the ability to pay maintenance, and that appellant has the means to pay attorney fees to respondent are not adequate for meaningful review. We remand for additional findings. The district court has discretion to receive additional evidence.

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In Re the Matter of the Welfare of the Child of SSW

767 N.W.2d 723

The issue in this case is the interpretation of the law regarding when a child is in need of protective services for the purposes of a CHIPS proceeding.  The applicable statute provides 15 grounds that may support a finding that a child is in need of protective services.

The Child Protection department in Ramsey County appealed the decision by the Judge that the department has to prove one of the fifteen grounds exists and that the child is in need of protective services as a result.  The parent of the child in question argued that a finding that one of the fifteen grounds existed did not in and of itself support a need for protective services.

The Court of Appeals affirmed the decision of the district court, finding that a child does not meet the statutory definition of "child in need of protection or services" unless one of the fifteen child-protection grounds exists and the child needs protection or services as a result.

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Kostrezewski v. Frisinger

Unpublished

This case is unpublished but is interesting as it affirmed a district court's decision ordering a change of primary custody to a father where the mother repeatedly interfered with his parenting time and relationship with the child.

The district court determined that a change in circumstances warranting a change of custody had occurred because the mother had engaged in a pattern of behavior intended to interfere with and completely undermine the father's relationship with the child.  This negative behavior included:

-denying the father court-ordered parenting time

-shortening court-ordered parenting time

-speaking negatively about the father in front of the child

-not encouraging telephone contact between the father and the child, if not

-outright denying telephone contact

-interfering with the father's parenting time by insisting the child carry a cell phone with her at all times and then calling repeatedly and even calling law enforcement to investigate the father if the child misses a call from the mother

This case is important as it may provide guidance to a district court when dealing with a situation of interference with parenting time or parental alienation.

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Kerr v. Kerr

770 N.W.2d 567

The issue in this case is the calculation of a non-marital interest in a retirement account.  The wife in this case had a non-marital interest in the parties' homestead and in her retirement account.  The wife's father gave her annual checks to keep in her accounts.  However, she admitted to mixing both marital and non-marital funds in her retirement account.

The Court of Appeals agreed with husband that the district court erred in calculating the non-marital value of her retirement account.  The Court of Appeals held that the district court should have made more detailed findings tracing the marital and non-marital portions of wife's retirement account, and sent the case back to district court for more detailed findings.

The appellate court also found that funds put down on a home for closing costs do count toward a non-marital interest, and it reinforced that refinancing during the marriage for marital expenditures decreases any marital equity first before invading non-marital equity.

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Yang v. Lee

770 N.W.2d 572

The issue in this case was whether a father had a legal obligation to pay child support for a child he allegedly adopted in Thailand.  The parties took in an infant while in a refugee camp in Thailand.  They obtained a birth certificate for the child which listed the father's name.  The parties did not dispute that obtaining a birth certificate was an appropriate method of adoption in the Hmong culture.

The parties subsequently divorced and moved separately to the United States, where the mother sought child support payments from the father.  The district court found that the father did not have a legal obligation as the mother did not prove the validity of the adoption.

The Court of Appeals affirmed, finding that the mother must prove that the foreign adoption procedure was valid under the laws of the country where it occurred.  In this case, the mother was only able to prove it would be recognized by the Hmong culture.  The appellate court also rejected the theory of equitable adoption, thereby limiting that theory to inheritance cases only as opposed to adoption and child support cases.