Opinion
No. C2-96-970.
Filed June 10, 1997.
Appeal from the District Court, Ramsey County, File No. F380512086.
Rachel Rosen, David L. Brehmer, (for appellant)
Linda Hawpatoss (respondent pro se)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Michael Bellanger challenges an order of the trial court denying his motions (1) for full legal and physical custody of his minor daughter; (2) to vacate an order for payment of child support arrearages; and (3) to release respondent Linda Hawpatoss's address. We affirm.
DECISION
1. Custody
On appeal, this court will not reverse a custody determination unless the district court abused discretion by making findings that were not supported by the evidence, or by improperly applying the law. Pikula v. Pikula , 374 N.W.2d 705, 710 (Minn. 1985). A trial court's findings will be sustained unless they are clearly erroneous. Id. Deference must be given to the opportunity of the trial court to assess the credibility of the witnesses. Minn.R.Civ.P. 52.01.
Bellanger argues that a June 1982 temporary custody order granted him legal and physical custody of the parties' children. He contends that because Hawpatoss failed to appeal the June 1982 order, she is now prevented from claiming that a tribal court later granted her legal custody of the parties' minor child. He also claims that Hawpatoss's "abduction" of the children in 1982 did not serve the best interests of the children and she should not be rewarded for removing the children from the state in violation of the temporary custody order. Therefore, he contends, the trial court abused discretion in denying his motion for custody.
Under the Minnesota Parentage Act,
[t]he biological mother of a child born to a mother who was not married to the child's father neither when the child was born nor when the child was conceived has sole custody of the child until paternity has been established * * *.
Minn. Stat. § 257.541, subd. 1 (1996). If the custody proceeding is commenced after the determination of paternity, however, "the petition really seeks a change or modification of the custody order entered in the paternity action and, hence, is governed by section 518.18(d)." Morey v. Peppin , 375 N.W.2d 19, 24 (Minn. 1985). Minn. Stat. § 518.18(d) (1996) provides in part that the district court
shall not modify a prior custody order unless it finds * * * that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child.
The court must find that "the child's present environment endangers the child's physical or emotional health or impairs the child's emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child." Minn. Stat. § 518.18 (d)(iii) (1996).
Because the record is devoid of any court records on this case between the periods of 1983 to 1988 and 1990 to 1994, the trial court functionally resolved the issue of custody in his June 5, 1995, order:
The October 24, 1989 order set support at $275 per month and continued "the present visitation schedule * * * [in] effect." By implication, this order presumed custody in [Hawpatoss]. No such award of custody, however, was ever made by this court. By conjecture, it would appear that since [Bellanger] did not appear at that hearing [where Hawpatoss] advised the court that she had legal and physical custody of the children. That legal custody, it is surmised, is the same legal custody she contended she had at the hearing on February 3, 1995, that is, an award of custody by a tribal court in * * * Wisconsin.
Bellanger obtained only a "temporary" custody award in 1982. At that time, the minor children resided with him for a period of only ten months, and Bellanger never sought a final custody determination until 13 years later, in March 1995. His son, Donovan, was then emancipated.
We note that custody has been raised only insofar as it bears upon Bellanger's accrued unpaid child support. Prior to the release of this opinion, his daughter, Feather, reached the age of emancipation (May 10, 1997). We conclude, therefore, that a determination of any custody or visitation issue is moot. We further note that the trial court properly concluded that, given Feather's age, she may determine the manner and frequency of any visitation with her father. Therefore, he is not entitled to a disclosure of Feather's or Hawpatoss's address.
2. Child Support
The trial court has broad discretion to provide for the support of the parties' children. Rutten v. Rutten , 347 N.W.2d 47, 50 (Minn. 1984). This court will not reverse the trial court's decision on child support unless that decision was clearly erroneous. Id. at 51.
Bellanger argues that because he had custody of the parties' minor children, child support should never have been instituted. Given the age of his children, he contends, collecting child support arrearages now would only reward Hawpatoss for absconding with the children in 1982. Thus, he claims, enforcement of the child support order is erroneous.
Modification of child support is within the discretion of the district court and will not be reversed absent an abuse of discretion. Kuronen v. Kuronen , 499 N.W.2d 51, 53 (Minn.App. 1993), review denied (Minn. June 22, 1993). Child support may be modified upon a showing of "substantially increased or decreased earnings of a party" or "substantially increased or decreased need of a party or * * * children." Minn. Stat. § 518.64, subd. 2(a) (1996). If the court does not deviate from the guidelines in making a modification of child support, it need make written findings only on the amount of the obligor's income and any other significant evidentiary factors. Minn. Stat. § 518.551, subd. 5(i) (1996).
The trial court recognized that, after 13 years, actual physical custody had remained with Hawpatoss for all but ten months. The trial court found a March 1981 order stipulating the child support set to be proper. The trial court then concluded that the child support order must be enforced and ordered Bellanger to pay all arrearages.
We observe that Bellanger is the unmarried, but adjudicated, father of the now-emancipated children. He erroneously relies on a "temporary" custody order issued at a default hearing in 1982, not attended by the mother, for the proposition that he was granted "custody" of the children and thereby not required to pay child support. Child support is for the benefit of the children and not ordered or paid for the benefit of the custodial parent. Smith v. Smith , 282 Minn. 190, 194, 163 N.W.2d 852, 856 (1968) (comparing difference between child support payments and alimony or spousal maintenance where welfare of child is primary). We conclude, therefore, that the child support order is enforceable and that Bellanger owes a duty to pay support for his children. Given the fundamental purpose of child support and in view of the incomplete record presented, we think the trial court exercised his discretion in a sensible way. Thus, enforcement of the child support award and arrearages did not constitute an abuse of that discretion.