In re the Marriage of: Amy Lynn Clifton, petitioner, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0477

In re the Marriage of:
Amy Lynn Clifton, petitioner,
Respondent,

vs.

Brandon John Clifton,
Appellant,

County of Anoka, intervenor,
Respondent.

Filed January 16, 2018
Reversed and remanded
Ross, Judge

Anoka County District Court
File No. 02-FA-11-268

Anthony C. Palumbo, Anoka County Attorney, Nicholas Jannakos, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Amy Clifton, Zimmerman, Minnesota (pro se respondent)

Sean Linnan, Linnan Law Firm, LLC, Sturgeon Bay, Wisconsin (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Bratvold,
Judge.
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U N P U B L I S H E D O P I N I O N
ROSS, Judge
Brandon and Amy Clifton divorced when they were both unemployed and collecting
unemployment benefits, and they stipulated to an order entered by the district court that
Brandon had no basic child-support obligation and that neither party’s becoming employed
would constitute a substantial change in circumstances warranting modification of the
obligation. Four years later, Amy had become employed earning roughly 250% more than
she was earning before she began receiving unemployment benefits and enough for her to
meet her own expenses, while Brandon became employed earning roughly 25% less than
he was earning before he began receiving unemployment benefits and not enough for him
to meet his own expenses. After the county intervened and moved the district court to
modify Brandon’s monthly child-support obligation, the district court ordered him to pay
$332 monthly. Because Brandon questioned, but the district court failed to address,
whether the parties’ employment was a change in circumstances that made the terms of the
extant child-support order unreasonable and unfair, the district court abused its discretion
and we reverse and remand.
FACTS
Brandon and Amy Clifton dissolved their marriage in October 2012. They had three
minor children and stipulated to a basic child-support obligation of $0 monthly and to
dividing child-care costs equally. Both were unemployed, but they contemplated that their
unemployment would be temporary and stipulated that “simply gaining employment
commensurate with their former employment would not, in itself, trigger a ‘substantial
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change’ such that it would warrant modification of this support provision.” The “former
employment” the parties were referring to had afforded Brandon a g ross monthly income
of about $2,900 and Amy a gross monthly income of about $2,000. The county attorney
joined the stipulation, and the district court adopted it into its judgment and decree.
Four years after the judgment and decree, Anoka County filed a Notice of
Intervention and Motion to Modify Child Support, based on the fact that the Clifton
children received medical a ssistance. The county requested that the district court set
Brandon’s basic support obligation at $595, his medical support obligation at $48, and his
ongoing child-care support obligation at $146, and order him to pay 38% of the children’s
uninsured and unreimbursed medical expenses. The district court considered the county’s
motion.
Amy had secured employment significantly more lucrative than before, resulting in
a monthly income of $4,975. Brandon had secured employment less lucrative than before,
resulting in a monthly income of $2,252. Brandon testified that he had no way to meet any
increase in his $0 child-support obligation and still provide the children with housing and
meet his other expenses. The child support magistrate (CSM) essentially agreed, finding
that Brandon did not have sufficient income to meet his monthly expenses, even without
any increase in child support. The CSM found conversely that Amy’s income exceeded her
expenses, even without receiving child-support payments. Brandon argued that continuing
the extant $0 obligation was neither unreasonable nor unfair. In an order that did not make
any finding that continuing the $0 obligation was unreasonable or unfair, the CSM
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increased Brandon’s total monthly obligation from $0 to $332 and ordered him to pay 34%
of the children’s unreimbursed medical expenses.
Brandon moved for review of the CSM’s order, arguing that Amy’s increase in
income did not constitute a substantial change in circumstances that made his $0 obligation
unreasonable and unfair. Among other things, Brandon argued that the CSM had failed to
take into account any impact that Amy’s new husband’s contribution to her household
expenses might have had on her expenses. In an order that did not make any finding that
continuing the $0 obligation was unreasonable or unfair under the circumstances, the
district court affirmed the CSM’s order. It based its affirmation on the statutory
presumption of a substantial change in circumstances arising from the significant increase
in Amy’s income, saying nothing about wh y Brandon’s showing had not rebutted the
presumption about fairness.
Brandon Clifton appeals.
D E C I S I O N
Brandon challenges the district court’s order modifying his child-support obligation
from $0 to $332 each month. We will affirm the district court’s child-support modification
order unless the order reflects an abuse of the district court’s discretion. O’Donnell v.
O’Donnell, 678 N.W.2d 471, 474 (Minn. App. 2004). The district court has discretion to
modify a child-support obligation if there has been a substantial change in circumstances
that makes the terms of the current support order unreasonable and unfair. See Minn. Stat.
§ 518A.39, subd. 2. (2016).

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The Cliftons’ circumstances had substantially changed since the time of their
dissolution judgment. “It is presumed that there has been a substantial change in
circumstances . . . if the current support order is less than $75” and applying the statutory
child-support guidelines to the current circumstances “results in a calculated court order
that is at least 20 percent per month higher or lower” than the obligation under the extant
order. Minn. Stat. § 518A.39, subd. 2(b)(1). Without dispute, applying the child -support
guidelines to the changed circumstances would result in a child-support obligation that is
at least 20 percent higher than the extant obligation. The district court therefore correctly
reasoned that, “In this case the presumption applies.”
Brandon argues that the stipulation in the divorce decree prevented the district court
from modifying his support obligation. The argument is unconvincing. The parties had
stipulated only that “simply gaining employment commensurate with their former
employment would not, in itself, trigger a ‘substantial change’” in circumstances
warranting modification. The stipulation did not purport to foreclose the possibility that
either party’s increase in earnings would be so substantial that it would trigger the statutory
presumption of a substantial change in circumstances. And nothing in the stipulation
prevented the district court from entertaining a motion to modify the support obligation
under those circumstances.
We think that the critical issue presented to the district court, and the next question
Brandon raises on appeal, is whether the change in circumstances was not only substantial
but also made it unreasonable and unfair for the district court to leave Brandon’s original
obligation of $0 in place. Neither the CSM n or the district court included any finding on
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this issue, and neither included any analysis from which we might discern that they
considered it. Although a change in circumstances is irrebuttably presumed from a
significant difference in a guidelines calculation of child support, that change leads only to
a rebuttable presumption that leaving the extant obligation in place is also unreasonable
and unfair. Minn. Stat. § 518A.39, subd. 2(b). The statute therefore allows a party the
opportunity to rebut the presumption. And Brandon’s briefing to the CSM and to the district
court included various circumstances from which one might conclude that he has rebutted
the presumption that leaving the original obligation in place would be unreasonable and
unfair. Among other things, he argued that, because it was Amy’s significantly increased
income and his decreased income that triggered the substantial change in circumstances,
the change was not a circumstance that made his original obligation of $0 unreasonable or
unfair. He implied that the parties’ contemplation of reemployment bears on the
presumption of unreasonableness and unfairness. He also emphasized that Amy could meet
her expenses without receiving child support while he could not meet his own expenses
even without paying child support; that imposing the extra obligation on him would make
it difficult or impossible for him to maintain housing for the children during his parenting
time; that Amy had nearly doubled her alleged expenses to $6,385 in just five years while
his expenses increased only slightly; and that Amy’s expenses increased by her voluntary
decision to add four new children to her family since the divorce.
We have repeatedly held that a trial court’s failure to expressly consider whether a
substantial change in circumstances makes the extant order unreasonable and unfair
compels a remand. Videen v. Peters, 438 N.W.2d 721, 723 (Minn. App. 1989); Ruona v.
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Ruona, 390 N.W.2d 459, 461 (Minn. App. 1986); Bodmer v. Pattie , 383 N.W.2d 14, 17
(Minn. App. 1986). And this duty to make the finding has remained unchanged after the
legislature added the presumption in 1992. Compare Welsh v. Welsh, 775 N.W.2d 364, 371
(Minn. App. 2009) (“On remand, the district court shall also reconsider whether there is a
substantial change in circumstances rendering father’s child-support obliga tion
unreasonable and unfair.”), with Allan v. Allan, 509 N.W.2d 593, 596 (Minn. App. 1993)
(“To support a modification of child support, the district court is required to make specific
findings on the factors listed in Minn. Stat. § 518.64, subd. 2 [(1992)].”)
We reverse the district court’s order and remand the case for the district court to
address whether Brandon has rebutted the presumption that the change in circumstances
renders his original child-support obligation unreasonable and unfair. We offer no opinion
about whether the district court should reopen the record to make its necessary findings
and conclusions on this issue.
Reversed and remanded.