Nicole A. Nyhus, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1089

Nicole A. Nyhus,
Respondent,

Hennepin County,
Respondent,

vs.

Sokkhan Ka,
Appellant.

Filed March 4, 2019
Affirmed in part, reversed in part, and remanded
Cleary, Chief Judge

Hennepin County District Court
File No. 27-PA-FA-000049303

Nicole A. Nyhus, Inver Grove Heights, Minnesota (pro se respondent)

Michael O. Freeman, Hennepin Coun ty Attorney, Charles S. Weber, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Sokkhan Ka, Shoreview, Minnesota (pro se appellant)

Considered and decided by Worke, Presiding Judge; Cleary, Chie f Judge; and
Slieter, Judge.

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U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
In this child-support dispute, a ppellant Sokkhan Ka argues tha t the child support
magistrate (CSM) erred in (1) calculating his potential gross m onthly income, and (2)
setting the effective date of his past-support award. We affirm in part, reverse in part, and
remand.
FACTS
Ka and respondent Nicole A. Nyh us are the parents of one minor child, born in 2002.
They have never been married. Both parties signed a recognition of parentage in July 2002.
In 2011, respondent Hennepin Co unty initiated an action to esta blish Ka’s child-support
obligation, and the district cour t ordered Ka to pay $150 per m onth in child support.
Ho we ve r , Ka f a i l e d to r e m a i n cur r e nt wi t h hi s c hi l d- s up p or t pa yments, and the district
court found him to be in constructive civil contempt.
In November 2016, Ka moved to modify his child-support obligat ion because the
parties’ minor child was residing with him. In a February 2017 order, the CSM granted
Ka’s request and suspended his child-support obligation pursuant to Minn. Stat. § 518A.38,
subd. 3 (2016), effective as of March 1, 2016. The CSM credite d Ka’s testimony that the
minor child had been consistently residing with him since the b eginning of March 2016.
The CSM further ordered that Ka pay $32.80 per month toward his child-support arrears,
then over $4,000.

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In February 2017, Ka moved for sole legal and sole physical custody of the parties’
minor child. After a court-ordered custody evaluation, Ka and Nyhus stipulated to a
parenting-time schedule. The stipulation included that Ka would have primary care of the
minor child. In November 2017, t he district court adopted the stipulation, reserving the
issue of custody. In an order dated January 30, 2018, the dist rict court awarded Ka and
Nyhus joint legal and joint physical custody of the minor child. Although Ka claimed that
he had been the primary caretaker of the child for approximatel y two years, the district
court did not find the claim significant, as the child had spen t a substantial amount of his
life primarily in Nyhus’s care. The district court also ordered that the child primarily reside
with Ka and incorporated the previous parenting-time schedule.
Ka requested child-support serv ices from the county, and while the issue of custody
was still pending, the c ounty initiated an action under Minn. S tat. § 256.87 (2018) to
establish Nyhus’s basic support obligation. Ka also requested past support for two years
prior to the commencement of the county’s action.
In its order filed May 3, 2018, the CSM granted the county’s m otion to establish
child support and Ka’s request for past support effective Decem ber 1, 2017. Pursuant to
the Child Support Guidelines, the CSM found that Nyhus’s basic- support obligation is
$244 per month. Using December 1, 2017 as the effective date o f past support, the CSM
also offset Nyhus’s past-support obligation against Ka’s arrears, reducing the amount owed
to Nyhus to $2,479.66. Beginning May 1, 2018, the CSM suspended Ka’s $32.80 arrearage

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payment and established Nyhus’s ongoing basic-support obligation of $244 to be credited
against Ka’s arrears.
Ka moved for review of the CSM’s order. Ka argued that the CS M should have
used unemployment benefits to determine his potential gross mon thly income. Ka also
requested that the CSM prohibit all enforcement remedies for th e collection of arrears,
including revenue recapture, pass port denial, and student grant hold. The CSM denied
Ka’s motion and affirmed the entirety of its order. This appeal follows.1
D E C I S I O N
We apply the same standard for reviewing a CSM’s order that we apply to a district
court’s order regarding child support. Ludwigson v. Ludwigson, 642 N.W.2d 441, 445-46
(Minn. App. 2002). A CSM is affo rded broad discretion in makin g child-support
determinations. Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999). But we will find an
abuse of this discretion if the CSM makes an erroneous conclusion that goes against logic
and facts on the record. Id.
I. The CSM did not err in calculating Ka’s gross monthly income.

An appellate court will reverse a district court’s order regar ding child support only
if the district court abused its broad discretion by reaching a conclusion “that is against
logic and the facts on record.” Butt v. Schmidt , 747 N.W.2d 566, 574 (Minn. 2008)
(quotation omitted). “A [distric t] court’s determination of in come must be based in fact

1 Neither Nyhus nor the county filed a brief or otherwise oppose d this appeal. This court
ordered the appeal to proceed un der Minn. R. Civ. App. P. 142.0 3 (providing that if a
respondent fails to file a brief, the case shall be determined on the merits).

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and will stand unless clearly erroneous.” Newstrand v. Arend, 869 N.W.2d 681, 685 (Minn.
App. 2015) (quotation omitted), review denied (Minn. Dec. 15, 2015). A district court’s
finding is clearly erroneous if this court has a “definite and firm conviction that a mistake
has been made.” Id. (quotation omitted).
A district court must make wr itten findings in every case in which it computes child-
support obligations that include, in part, a parent’s gross inc ome. Minn. Stat. § 518A.37
(2018). A parent is rebuttably presumed to be able to work ful l-time, which is defined,
with few exceptions, as working 40 hours per week. Minn. Stat. § 518A.32, subd. 1 (2018).
A district court must calculate child-support obligations based on potential income if it
finds that the parent is “volunta rily unemployed, underemployed , or employed on a less
than full-time basis, or [if] there is no direct evidence of an y income.” Minn. Stat.
§ 518A.32, subd. 1.
A district court must calculate potential income according to one of three methods:
(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, tha t 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 30 hours
per week at 100 percent of the current federal or state minimum
wage, whichever is higher.

Minn. Stat. § 518A.32, subd. 2 (2018).

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Ka does not challenge the CSM’s use of potential income in its child-support
calculation. Instead, Ka asserts that the CSM should have used unemployment benefits to
arrive at his potential gross-monthly income.
In this case, the CSM found that, as of April 1, 2018, both Ka and Nyhus were
unemployed. The CSM found that Nyhus receives unemployment ben efits of $358 per
week and has a gross-monthly income of $1,551 but that Ka “left his former employment
and was initially denied reemployment benefits.” The CSM calculated Ka’s gross-monthly
income of $1,672 based upon his ability to work full-time and earn the minimum wage of
$9.65 per hour. Pursuant to the Minnesota Child Support Guidelines, the CSM determined
that Nyhus’s basic support obligation is $244 per month.
The CSM’s findings are supported by the record. At the hearin g, Nyhus testified
that she anticipated receiving $350 per week in unemployment benefits the following week.
Ka testified that he had applied for, and been denied, unemploy ment benefits. Ka also
testified that, prior to leaving his employment, he had been wo rking approximately 36
hours per week at $14 per hour. Ka was also asked if he understood that in order to arrive
at the agreed-upon calculation, the CSM would “impute or presum e that you could work
40 hours a week at minimum wage.” Ka responded that he understood.
In his motion for review, Ka argued that the CSM should have c alculated his
potential income based upon unemployment benefits. But as the CSM found in its order
denying Ka’s motion, Ka failed to provide any evidence of his r eceipt of unemployment
benefits. Indeed, his own testim ony disclosed that he had been denied unemployment

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benefits. Because Ka was denied unemployment benefits, the CSM presumed Ka’s ability
to work full-time at $9.65 per hour. See Minn. Stat. § 518A.32, subds. 1, 2. The CSM’s
determination of income is supported by the record and is not c learly erroneous, and we
affirm in part.
II. The CSM abused its discretion in awarding past support.

Generally, where there is no pr ior child-support order, it is improper to give a
support order retroactive effect. Davis v. Davis, 631 N.W.2d 822, 827 (Minn. App. 2001).
But Minn. Stat. § 256.87, subd. 5 provides that “[a] person or entity havin g physical
custody of a dependent child n ot receiving public assistance . . . has a cause of action for
child support against the child’s non-custodial parents.” And “[a] non-custodial parent’s
liability may include up to the two years immediately preceding the commencement of the
action.” Minn. Stat. § 256.87, subd. 5. This provision only a pplies if the person has
physical custody with the consen t of a custodial parent or appr oval of the court. Minn.
Stat. § 256.87, subd. 5.
Ka argues that the CSM erred in setting the effective date of past support as
December 1, 2017. Ka maintains t hat March 1, 2016, the date th at Ka claims that he
became the custodial parent, should have been the effective date of the past-support award.
Without citing to a statutory bas is, the CSM awarded Ka past s upport effective
December 1, 2017. The CSM explained that Ka is not entitled to past support prior to the
November 2017 stipulation entered into by the parties, and approved by the district court,
that first established the child’s primary residence with Ka. The CSM further reasoned that

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prior to the stipulation, Nyhus re tained sole physical custody of the child and Ka did not
have court-ordered parenting time.
But Minn. Stat. § 256.87, subd. 5 o n l y p r o v i d e s a c a u s e o f a c tion against non-
custodial parents. A “custodial parent” is defined as “the per son who has the physical
custody of the child at any particular time.” Minn. Stat. § 518.003, subd. 3(e) (2018). At
the time that the county instituted the action to establish child support, Ka’s motion for sole
legal and sole physical custody w as pending with the district c ourt, and Nyhus retained
sole physical custody. But on January 30, 2018, the district court awarded Nyhus and Ka
joint legal and joint physical custody of the child. “Joint physical custody” means that the
“routine daily care and control a nd the residence of the child is structured between the
parties.” Minn. Stat. § 518.003, subd. 3(d) (2018). According to the district court’s order,
both Nyhus and Ka are custodial parents. Because Nyhus is a custodial parent, Minn. Stat.
§ 256.87 does not provide a basis for a past-support award. The CSM abused its discretion
in awarding past support, and we reverse and remand.
Affirmed in part, reversed in part, and remanded.