Shane Foss, Appellant,

This opinion will be unpublished and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
A18-1849

Shane Foss,
Appellant,

vs.

Justine Topel,
Respondent.

Filed August 26, 2019
Affirmed
Jesson, Judge

Hennepin County District Court
File No. 27-FA-11-76

Glenn P. Bruder, Mitchell, Bruder and Johnson, Eden Prairie, Minnesota (for appellant)

Ruta Johnsen, Jessica Altmann, Nancy Zalusky Berg, LLC, Minneap olis, Minnesota (for
respondent)

Considered and decided by Smith, Tracy M., Presiding Judge; Sc hellhas, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
After appellant-father Shane Foss and respondent-mother Justin e Topel’s
relationship ended, father was ordered to pay mother $800 per month in child-care support.
Seven years later, father filed a motion challenging the child- care support obligation and
seeking a retroactive modification. The district court affirme d the child support

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magistrate’s decision to deny father’s motion. Because the dis trict court did not abuse its
discretion when it affirmed the child support magistrate’s decision and because the district
court did not make or tolerate procedural errors that denied fa ther de novo review of the
child support magistrate’s decision, we affirm.
FACTS
Appellant-father Shane Foss and re spondent-mother Justine Topel are the parents
of two children, born in 2007 and 2009. Father and mother neve r married. Father’s
child-support obligation was first established in January 2011 and modified by an amended
order in March 2011. The district court’s amended order set fa ther’s child support as
follows: (1) $1,180 in monthly basic child support; (2) $104 per month for medical support;
and (3) $1,070 per month in child-care support. In addition to the child-support obligation,
father was ordered to pay $4,104.27 in child-support arrears. Both the monthly
child-support obligation and arre ars were collected by Hennepin County Support and
Collections (the county) through wage withholding.
Five months later, in August 2011 , father and mother entered i nto a stipulation to
establish custody, parenting tim e, and child support. After re ceiving the stipulation, the
district court then issued an order based upon the stipulation. T h e o r d e r a d j u d i c a t e d
father’s paternity of the children, established father’s custody and parenting, and modified
father’s child-support obligation.
At the time of the August 2011 order, mother was incurring $1, 942 in monthly
child-care costs. And based upo n mother’s and father’s respect ive incomes, father’s
child-care support obligation was calculated at $1,049 per mont h. But mother and father

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agreed that a downward deviation in father’s child-care support obligation was “fair under
the circumstances and [was] in the best interest[s] of the chil dren.” Accordingly, father’s
monthly child-care support obligation was set at $800.
Nearly seven years later, in April 2018, father filed a motion for repayment of his
overpayment of child support due to administrative error. 1 And concerned that his
child-care support obligation exceeded mother’s actual child-care costs, father also sought
modification of his child-care support obligation and requested a judgment for the overpaid
child-care support. Specifically, father requested that his child-care support obligation be
recalculated retroactively for the years 2011 through 2017. Mother opposed this motion.
The child support magistrate hear d father’s motion in June 2018 . At the hearing,
mother and father placed an agreem ent to modify father’s future child-care support
obligation on the record. Beginning on July 1, 2018, father’s child-care support obligation
would be modified to be calculated according to the parties’ pa rental income for child
support and based on expenses incurred. But mother opposed fat her’s motion for
retroactive modification.
At the motion hearing, the partie s offered oral arguments, in a ddition to their
affidavits, in support of their respective positions regarding retroactive child-care support
modification. After hearing the arguments, the child support m agistrate determined that

1 When the child-support obligation was modified in August 2011, the county did not
accurately adjust the child support to be collected from father. The child support magistrate
addressed this issue in its July 2018 order. And the county wa s ordered to correct its
administrative error and credit father with the overpayment inc urred consistent with the
county’s policies. Father does not challenge this portion of t he district court’s order on
appeal.

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no additional testimony was needed, and the matter would be taken under advisement. At
this time, father’s counsel requested that father be allowed to testify about “how the [c]ourt
might adjust the downward deviation or when that ends, and [father] can provide testimony
to the [c]ourt that might allow that to happen.” But the child support magistrate declined
the additional testimony, noting that sufficient submissions ha d been provided by the
parties.
About one month later, the child support magistrate issued an order denying father’s
motion to retroactively modify h is child-care support obligatio n, reasoning that father
“failed to establish any good cause as to the delay in bringing the motion.” The magistrate
noted that the parties stipulated in 2011 to a sum-certain child-care support amount, which
was considered a deviation in f ather’s contribution that provid ed him with a significant
benefit. Father sought district court review of the child supp ort magistrate’s order. But
the district court denied father’s motion for review. Two days after the issuance of the
order, father submitted correspondence to the court seeking to reopen the record to allow
for submission of a memorandum o f law. The court denied father ’s request for
reconsideration. Father appeals.
D E C I S I O N
Father challenges the district court’s decision on two grounds. First, father argues
that the district court abused its discretion when it denied hi s motion for retroactive
child-care support modification. Then, father argues that the district court made, or
tolerated, a series of procedural errors that deprived him of d e novo review of the child
support magistrate’s decision. We address each argument in turn.

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I. The district court did not ab use its discretion when it deni ed father’s motion
for retroactive child-care support modification.

Father asserts that he is entitled to retroactive modification of his child-care support
obligation because his contributio ns exceeded mother’s actual c hild-care expenses. The
district court reviews the decision of a child support magistra te de novo, and this court
evaluates the decision of the district court on child-support m atters for an abuse of
discretion. Davis v. Davis , 631 N.W.2d 822, 825 (Minn. App. 2001); Gully v. Gully ,
599 N.W.2d 814, 820 (Minn. 1999). But the application of a sta tute to undisputed facts
presents a question of law, which this court reviews de novo. Brodsky v. Brodsky ,
733 N.W.2d 471, 477 (Minn. App. 2007).
Minnesota Statutes section 518A. 39, subdivision 7 (2018) states that “[c]hild care
support must be based on the actual child care expenses. The c ourt may provide that a
decrease in the amount of the ch ild care based on a decrease in the actual child care
expenses is effective as of the date the expense is decreased.” When considering a motion
to retroactively modify child-care support, the district court may look beyond the date of
the filing of the motion to modify, though it is not required t o do so. Jones v. Jarvinen,
814 N.W.2d 45, 47 (Minn. App. 2012).
Here, the district court determined that father’s delay in brin ging his motion for
retroactive modification and the prior beneficial stipulation d emonstrated that retroactive
modification was not warranted. And after reviewing the record , the district court found
that the magistrate properly bas ed her decision on Minnesota St atutes section 518A.39,
subdivision 7, the applicable statute governing child-care supp ort modification.

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Accordingly, the district court denied father’s motion for retr oactive child-support
modification. We agree.
In 2011, the parties stipulated to child-care costs. The stipu lated amount was
considered a downward deviation. And father was bound by this order, which, at the time,
p r o v i d e d h i m w i t h a s i g n i f i c a n t f i n a n c i a l b e n e f i t . W h i l e m o t h er’s child-care support
expenses may have decreased between 2011 and 2018, father failed to bring a motion for
modification within those seven years. Accordingly, the distri ct court did not abuse its
discretion by declining to retroactively modify father’s child-care support obligation.
Still, father asserts that the c hild support magistrate inappro priately grounded its
decision on the doctrine of laches. 2 F a t h e r ’ s a s s e r t i o n i s b a s e d upon the child support
magistrate’s comments at the motion hearing regarding the retro active modification of
child-care support. Specifically, the child support magistrate stated that her “inclination is
not to provide [a retroactive modification], and I think the [laches] argument is appropriate
here, but I will look again and see if there is a basis for a r etroactive modification.” But
the child support magistrate was clear that this was her inclination, not her decision. And
in a written order, the magistrate stated her reasons for denying father’s motion, including
that father failed to establish good cause as to the delay in bringing the motion, that father
and mother stipulated to a downward-deviation child-care amount in the underlying order,
and that this deviation provided father with a significant reduction in his contribution.

2 Laches is an equitable doctrine that provides that a person’s legal or equitable claim
should be barred if it is brought “after unreasonable delay” an d “results in prejudice.” In
re K.L.B. , 759 N.W.2d 409, 413 n.2 (Minn. App. 2008), review denied ( M i n n .
Feb. 25, 2009).

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In its review of the child support magistrate’s decision, the district court found that
the decision was based on the child support magistrate’s discretionary authority regarding
retroactive modification, rather than the defense of laches. W e agree. Accordingly, the
district court did not abuse its discretion in affirming the ch ild support magistrate’s order
denying father’s retroactive child-support modification.
II. The district court did not ma ke or tolerate any procedural errors that deprived
father of de novo review.

Father asserts that the district court made or tolerated a seri es of procedural errors
that deprived him of de novo revi ew of the child support magist rate’s decision.
Specifically, father asserts that the district court utilized t he incorrect standard of review
when it evaluated the magistrate’s decision, that the district court ignored the magistrate’s
decision to not allow father to testify at the motion hearing, and that before it denied father
relief, the district court should have allowed him to file a me morandum of law in support
of his position. We address each argument in turn.
Standard of Review

Father argues that the district court utilized the improper standard to review the child
support magistrate’s order and, as such, did not afford him de novo review to which he was
entitled.
It is well established that a district court reviews a child su pport magistrate’s
decision de novo. Davis, 631 N.W.2d at 825; see Minn. R. Gen. Prac. 377.09, subd. 2(b)
(stating that the “district court judge shall make an independent review of any findings or
other provisions of the underlying decision and order for which specific changes are

8
requested in the motion”). If the district court affirms the o rder, it may do so without
making additional findings. Minn. R. Gen. Prac. 377.09, subd. 2(b). But the district court
should review the decision “free from the influence, guidance, or control of the [child
support] magistrate.” Blonigen v. Blonigen , 621 N.W.2d 276, 280 (Minn. App. 2001),
review denied (Minn. Mar. 13, 2001).
Here, the district court first re ferenced this “independent rev iew” in its order
denying father’s motion for review of the child support magistr ate’s decision, but also
stated that it “shall affirm the order unless the court determines that the findings and order
are not supported by the record or the decision is contrary to law.” In short, the district
court cited to two different standards of review in its decision.3
Father directs this court’s attention to nothing more than thi s language to support
his assertion that the district court did not conduct a de novo review. But this court cannot
assume that the district court erred based on its language alon e. See Loth v. Loth ,
35 N.W.2d 542, 546 (Minn. 1949) (stating that appellate courts cannot assume district court
error); Luthen v. Luthen, 596 N.W.2d 278, 283 (Minn. App. 1999) (applying Loth, stating
appellate courts “cannot assume that the district court will neglect its duty to independently

3 Father asserts that the distric t court’s statement that “[r]ul e 377.09 subd. 3, requires a
review to be based upon the decision of the child support magistrate” demonstrates that the
child support magistrat e’s decision was a template for the judg e’s analysis and that
modification is permitted only wh en the findings and order were not supported by the
record or contrary to law. But f ather excludes the rest of wha t the district court wrote,
which identified “all exhibits a nd affidavits filed with the co urt” and the audio recording
of the hearing if no transcript was ordered. Looking at the te xt as a whole, it undercuts
father’s argument because the district court went beyond the ch ild support magistrate’s
order to review the entire record.

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evaluate the proposed judgment or will err or abuse its discret ion in performing that
evaluation”). And though the district court utilized inexact l anguage when reciting the
standard of review, it did not fail to conduct a de novo review of the child support
magistrate’s decision. In its order, the district court stated that its review would be based
upon the child support magistrate’s decision and all exhibits a nd affidavits filed with the
court. The district court also indicated that it reviewed the transcript of the hearing prior
to issuing its order. And according to the rules regarding mot ions for review of
child-support obligations, this is the proper procedure. See Minn. R. Gen Prac. 377.09,
subd. 2(b). As such, the district court conducted a de novo re view of the child support
magistrate’s order.4
Opportunity to Testify

Father challenges the child support magistrate’s decision to not allow his testimony
at the June 2018 hearing and argues that the district court ignored this decision. But at the
hearing, father did not object to the child support magistrate’s decision to bar his testimony.
Nor did father raise this issue in his request for review of th e child support magistrate’s
decision, or when he requested permission to reopen the record for additional briefing and
to bring a motion for reconsider ation. And in his brief, fathe r states, “[a]dmittedly, this
[argument] is not explicitly set forth in the Notice filed by [ father’s] atto rney seeking

4 Father also asserts that “by utilizing this unwarranted, lenie nt, standard of review, the
[d]istrict [c]ourt [j]udge effec tively turned a blind eye to Ar ticle VI Section 3 of the
Minnesota Constitution.” But because the district court did conduct an independent review
of the record, we do not reach this issue.

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review.”5 As such, father did not preserve for appeal any allegation of error on this point.
See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that, generally, ap pellate
courts address only issues previ ously presented to and consider ed by the district court).
Accordingly, the child support ma gistrate did not improperly de ny father the opportunity
to testify at the June 2018 hearing.
Opportunity to Submit a Memorandum of Law

Father contends that the district court erred by issuing its decision before receiving
memoranda from the parties. Ap pellate courts will only reverse a district court’s
child-support order where a district court abused its discretion. Putz v. Putz, 645 N.W.2d
343, 347 (Minn. 2002). And “[m]isapplying the law is an abuse of discretion.” Bauerly v.
Bauerly, 765 N.W.2d 108, 110 (Minn. App. 2009).
To address father’s argument, we turn to the Minnesota General Rules of Practice.
Under rule 377.03, subdivision 2(a), the motion for review shall state the reason or reasons
why review is being requested. And pursuant to rule 377.02(e), an aggrieved party bringing
a motion for review may order a transcript, if they so desire. But while a party is permitted
to order a transcript, rule 377.02(e) does not allow extra time, beyond the allotted 20 days,
to submit a memorandum of law. And the due date is not extende d by the ordering and

5 Father states that due to a change in attorney following the hearing, his new counsel was
not aware of the child support magistrate’s decision to not allow him to testify until counsel
received the hearing transcript o n September 5. But on Septemb er 20, father submitted
correspondence to the court reque sting that the record be reope ned and requesting
reconsideration.

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filing of the transcript. Minn. R. Gen. Prac. 366.01, subd. 2. Once the transcript is filed
with the court, the record is closed. Id.
Here, the child support magistrate issued its order on July 16 , 2018. And father
waited until August 3, 2018 to order the transcript from the hearing. While father stated in
his motion for review that he intended to submit a memorandum o f law incorporating
information from the tr anscript within 20 days of receipt of th e transcript, the Minnesota
General Rules of Practice do not entitle father to submit a mem orandum of law
incorporating matters transcribed at the child support magistrate hearing. Rather, a 20-day
timeline remains applicable. A nd allowing father to submit his memorandum of law
20 days after receipt of the tran script would have allowed him 71 days past the child
support magistrate’s decision to submit his final part of his m otion for review—well
beyond the 20-day timeframe. As such, the district court was not required to accept father’s
memorandum of law before issuing its decision.
Still, father asserts that the district court “rush[ed]” to re ach a decision, without
referencing the transcript, and he was adversely affected. But in its order, the district court
explicitly stated that it review ed the transcript when addressi ng father’s retroactive
child-care support obligation argument. Accordingly, father’s argument is unpersuasive.
Because father was not entitled to submit a memorandum of law following the
receipt of the transcript, the district court did not abuse its discretion in denying father an
opportunity to submit a memorandum of law in support of his motion for review.
Affirmed.