In re the Marriage of:

This opinion will be unpublished and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
A19-0224

In re the Marriage of:

Tabatha Annette Cusick n/k/a Tabatha Annette Biegler,
Respondent,

vs.

Mark Anthony Cusick,
Appellant.

Filed March 16, 2020
Affirmed
Cochran, Judge

Anoka County District Court
File No. 02-FA-14-2311

Caitlin E. O’Rourke, Hess & Jendro Law Office, P.A., Elk River, Minnesota
(for respondent)

Francis Herbert White III, Brian K. Lewis, Francis White Law, P.L.L.C., Woodbury,
Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Cochran, Judge; and
Segal, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant Mark Anthony Cusick filed a post-dissolution motion to modify his child
support, medical support, and child-care supp ort obligations based on a change in his

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income and other circumstances. The district court denied the motion with respect to his
child-support obligation. On appeal, appellant-father argues that the district court abused
its discretion when it included his military disability payments and his overtime earnings
in its calculation of his income for child-support modification purposes. We affirm.
FACTS
The marriage between appellant Sergeant Mark Cusick (fath er) and respondent
Tabatha Cusick (mother) was dissolved in Se ptember 2015, by stipulated judgment and
decree. At the time of the dissolution, moth er was employed full-time, with an average
gross monthly income of $9,564. Father was employed full-time by Life Link III as a flight
paramedic, and was also employed with th e Army Reserves; father’s average gross
monthly income was $5,625, including over time from both Life Link III and the Army
Reserves. Based on the parties’ income, a nd the adjustment to account for father’s
parenting-time, father was ordered to pay child support for the parties’ two minor children
in the amount of $919 per month.
In 2018, father retired fro m the United States Army Re serves and began receiving
monthly veteran’s disability payments of $951.41. Fa ther continued to work for Life
Link III. After retiring from the Army Reserves, father moved to modify his child-support
obligation, seeking to have his military disability payments and Life Link III overtime pay
excluded from his income for child-support purposes. At the time father filed the motion,
his monthly child-support obligation had increased to $932 per month to reflect
cost-of-living adjustments.

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The district court denied father’s motion, ordering him to “continue to pay $932 per
month as ongoing basic support. ” The district court concluded that father’s military
disability payments constitute income fo r purposes of child support under Minn.
Stat. § 518A.29(a) (2018), and reje cted father’s argument that Minnesota’s statutory
definition of income for child-support purposes is preempted by federal law. The district
court also found that father’s “overtime did not begin after the filing of the petition for
dissolution or even the motion to modify child support, nor does it reflect an increase in
his work schedule or hours over the past two years.” Thus, the district court determined
that father’s overtime “should continue to be included in hi s parental income for child
support.” This appeal follows.
D E C I S I O N
Father challenges the order denying hi s motion to modify his child-support
obligation, arguing that the district court erred by including his military disability payments
and his Life Link III overtime as income for purposes of establishing child support.
“[A] district court enjoys broad discretion in ordering modifications to child support
orders” provided that it exercises that discretion “within the limits set by the legislature.”
Putz v. Putz , 645 N.W.2d 343, 347 (Minn. 2002). A district court’s order regarding
modification of child support will not be reversed absent an abuse of discretion.
Rogers v. Rogers, 622 N.W.2d 813, 822 (Minn. 2001). A district court abuses its discretion
if its decision is based on a misapplication of the law or is contrary to the facts in the record.
Shearer v. Shearer, 891 N.W.2d 72, 77 (Minn. App. 2017).

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A child-support order may be modified on a showing of a substantial change in
circumstances that makes the order unreasonable and unfair. See Minn. Stat. § 518A.39,
subd. 2(a) (2018). Circumstances that may warrant modification include a “substantially
increased or decreased gross income of an obligor or ob ligee,” and a “substantially
increased or decreased need of an obligor or obligee.” Id., subd. 2(a)(1), (2). When a
dissolution judgment is based on the parties’ stipulation, the judgment constitutes “baseline
circumstances” from which any change in circumstances is measured. Hecker v. Hecker,
568 N.W.2d 705, 709 (M inn. 1997). The party seeking to modify child support has the
burden of proof. Heaton v. Heaton , 329 N.W.2d 553, 554 (M inn. 1983). While the
existence of a stipulation does not bar late r consideration of whether a change in
circumstances warrants modification, a dist rict court should “carefully and only
reluctantly” alter its terms. O’Donnell v. O’Donnell , 678 N.W.2d 471, 475 (Minn.
App. 2004) (quotation omitted).
A. The district court did not abuse its di scretion by including father’s military
disability payments in its calculation of father’s income for purposes of his
motion to modify child support.

Father argues that the district court “imp ermissibly” determined that it could include
father’s military disability co mpensation as income for the purpose of calculating and
modifying child support. Whether a source of funds is considered to be income for
child-support purposes is a legal question reviewed de novo. Hubbard Cty. Health &
Human Servs. v. Zacher, 742 N.W.2d 223, 227 (Minn. App. 2007).
Minnesota statutes provide that “gross inco me” is to be used in establishing and
modifying child-support obligatio ns and is defined to incl ude “any form of periodic

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payment to an individual, including, but not limited to . . . pension and disability
payments . . . .” Minn. Stat. § 518A.29(a) (emphasis added). Thus, the definition of “gross
income” plainly contemplates th at father’s military disability payments may be used to
calculate his income for child-support purposes.
Father contends that federal law preempt s Minnesota’s definition of “gross income”
and exempts his military disability payments from being used for court-ordered child
support. To support his claim, father cites 38 U.S.C. § 5301(a)(1) (2018), which he refers
to as an anti-attachment clause, and 42 U.S.C. § 659 (2018). Section 5301(a)(1) provides
that veterans’ disability payments “shall not be liable to attachment, levy, or seizure by or
under any legal or equitable process whatev er, either before or after receipt by the
beneficiary.” 38 U.S.C. § 5301(a)(1). And section 659(a) provides:
[M]oneys (the entitlement to which is based upon
remuneration for employment) due from, or payable by, the
United States . . . to any indivi dual, including members of the
Armed Forces of the United States, shall be subject, in like
manner and to the same extent as if the United States . . . were
a private person . . . [to] legal process brought . . . to enforce,
[against such] individual to provide child support . . . .

42 U.S.C. § 659(a). But section 659 also exempts vete rans’ disability payments from its
application. 42 U.S.C. § 659(h)(1)(B)(iii).
Under the Supremacy Clause of the Constitution, a fede ral law prevails over a
conflicting state law. U.S. Cons t. art. VI, cl. 2 (stating that the laws of the United States
“shall be the supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the contrary
notwithstanding”). “Congressional purpose is the ultimate touc hstone of the inquiry into

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whether a federal statute preempts a state law.” Angell v. Angell , 791 N.W.2d 530, 534
(Minn. 2010) (quotations omitted). When considering issues arising under the Supremacy
Clause, courts “start with the assumption that the historic police powers of the States were
not to be superseded by the Federal Act unless that was the clear and manifest purpose of
Congress.” Rice v. Santa Fe Elevator Corp. , 331 U.S. 218, 230, 67 S. Ct. 1146,
1152 (1947). “Divorce and other family law matters are traditionally within the historic
police power of the states.” Angell, 791 N.W.2d at 534.
We conclude that the United St ates Supreme Court’s decision in Rose v. Rose ,
decides the preemption issue raised by appellant . 481 U.S. 619, 107 S. Ct. 2029 (1987).
In Rose, the Supreme Court directly addressed whether states are preempted from requiring
a veteran to use veterans’ disability payments to satisfy child-sup port obligations and
concluded that no preemption exists. The issu e arose after a state court held a disabled
veteran in contempt for failing to pay child support. Rose, 481 U.S. at 623, 107 S. Ct. at
2032. The veteran’s only means of satisfy ing the child-support obligation were his
veterans’ disability benefits a nd Social Security benefits. Id. at 622, 107 S. Ct. at 2032.
The state court considered these benefits when establishing child support. Id.
The veteran in Rose, like the father in this case, argued that the state court action
was preempted by 38 U.S.C. § 5301 (then 3101) and by 42 U.S.C. § 659. Id. at 630, 634-35,
107 S. Ct. at 2036, 20 38. The Supreme Court disagreed. Addressing 38 U.S.C. § 5301,
the Supreme Court concluded that a state cour t order requiring a veteran to use military
disability benefits to pay child support did not frustrate th e purpose of 38 U.S.C. § 5301
because Congress intended a veteran’s disability payments “to support not only the veteran,

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but the veteran’s family as well.” Id. at 634, 107 S. Ct. at 20 38 (emphasis added). And,
with regard to 42 U.S.C. § 659, the Suprem e Court rejected the veteran’s argument that
section 659 “embodies Congress’ intent that veterans’ disability benefits not be subject to
any legal process aimed at diverting funds for child support. . . .” Id. at 635, 107 S. Ct. at
2038. The Court held that although veterans’ disability pa yments may be exempt from
attachment while in the government’s hands, once they are delivered to the veteran, a state
court can require that they be used to satisfy a child-support order. Id. at 635, 107 S. Ct. at
2039. The Supreme Court concluded that “neither the [v]eterans’ [b]enefits provisions of
Title 38 nor the garnishment provisions of the Child Support Enforcement Act of Title 42
indicate unequivocally that a veteran’s disability benefits are provided solely for that
veteran’s support.” Id. at 636, 107 S. Ct. at 2039.
After Rose was decided, this court considered whether veterans’ disability payments
could be used to satisfy a child-support obligation. In Sward v. Sward , this court stated
that “both military and Social Security disability benefits may be considered as ‘income’
in setting child support and maintenance awards.” 410 N.W. 2d 442, 444 (Minn.
App. 1987) (rejecting obligor’s claim that 42 U.S.C. § 659(a) exempted veterans’ disability
payments from being considered in come for child-su pport purposes), review granted
(Minn. Sept. 30, 1987) and appeal dismissed (Minn. Dec. 2, 1987).
Father acknowledges Rose, but he argues that the more recent Supreme Court
decision of Howell v. Howell, 137 S. Ct. 1400 (2017), “clari fies and serves to modify the
central holding of Rose.” Father maintains that Howell can be read to clarify that federal
law expressly limits the amount of veterans’ disability payments that a state can require a

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veteran to pay to satisfy a child-support obligation. In support of his argument, father cites
to 38 U.S.C. § 1115(1)(C) (2 018), which provides additiona l disability compensation to
veterans with dependents. Spec ifically, father cites to the la nguage of section 1115 that
provides a veteran, “whose disability is rated not less than 30 percent,” and who “has no
spouse but one or more ch ildren,” shall be entitled to additional compensation for
dependents in the amount of “$101 plus $75 for each child in excess of one.”
38 U.S.C. § 1115(1)(C). Father argues that, because section 1115(1)(C) is clear on its face,
the amount established in the statute is the “total universe” of veterans’ dependent benefits
available for the state court to consider when calculating child support from veterans’
disability payments.1 He maintains that, because Minn esota’s definition of “income” for
child support includes all disability pa yments, Minnesota law is preempted by
section 1115(1)(C). We are not persuaded.
The plain language of 38 U.S.C. § 11 15(1)(C) does not limit a veteran’s
child-support obligation to the am ount set forth in the statute. Rather, the statute simply
establishes how much a veteran is entitled to receive in disability compensation if the
veteran has “no spouse but one or more children.” 38 U.S. C. § 1115(1)(C). Moreover,
despite father’s argument to the contrary, Howell does not hold or even suggest that
38 U.S.C. § 1115 was intended to preempt state laws governing the calculation of income

1 Father also argued for the first time at oral argument that under state law, only a portion
of his veterans’ disability payments are elig ible for payment of child support. But
reviewing courts generally do not consider arguments raised for the first time at oral
argument. See Getz v. Peace, 934 N.W.2d 347, 353 n.3 (Minn. 2019). Moreover, as this
court made clear in Sward, “both [veterans’] and social security disability benefits may be
considered as ‘income’ in setting child support.” 410 N.W.2d at 444.

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for child-support obligations. Howell did not address child supp ort or 38 U.S.C. § 1115.
Instead, Howell addressed the Uniformed Services Former Spouses’ Protection Act,
10 U.S.C. § 1408, and held that the Act pr eempts states from requiring a veteran to
reimburse an ex-spouse for veterans’ retirement benefits that the veteran waived to receive
veterans’ disability payments. See 137 S. Ct. at 1405-06. Conversely, Rose specifically
held that federal law does no t preempt state-court jurisdic tion over veterans’ disability
payments for child-support purposes becaus e “Congress clearly intended veterans’
disability benefits to be used, in part, fo r the support of veterans’ dependents.” Rose,
481 U.S. at 631, 107 S. Ct . at 2036. And nothing in Howell suggests that the Supreme
Court intended to overrule Rose.
In fact, this court recently indicated that, despite the impact of Howell on veterans’
disability payments in the context of marital property settlements, those benefits may still
be used to calculate income for purposes of child support under Rose. See
Mattson v. Mattson, 903 N.W.2d 233, 239 n.5 (Minn. App. 2017) (noting that Rose “held
that disability benefits were never intended to be exclusively for the veteran, but were
intended to support the veteran’ s family as well,” and that c ourts continue to rely on
“disability compensation to calc ulate and enforce child sup port and spousal maintenance
obligations” (quotations omitted)), review denied (Minn. Dec. 27, 2017). Therefore, father
has not shown that federal law preempts stat es from requiring vetera ns to use veterans’
disability payments for child-support purposes, or otherwise limits the amount of veterans’
disability payments that can be used in calculating income for child-support purposes.

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Father further appears to argue that his military disability payments cannot be used
to calculate his income for purposes of ch ild support because he has not yet waived a
portion of his retirement pay in order to receive his disa bility compensation.2 But father
cites no relevant caselaw supporting his claim that veterans’ disability payments cannot be
used to calculate income for child-support purposes where, as here, the veteran has not yet
waived a portion of his retirement pay. Instead, as addressed above, Minn. Stat. § 518A.29
and Minnesota caselaw clearly establish that veterans’ disability pa yments may be used
when calculating an obligor’s income for child-support purpo ses. Accordingly, while
father is to be commended for his military service, the dist rict court did not abuse its
discretion by including father’s military disability payments when calculating his income
for child-support purposes.
B. The district court did not abuse its discretion by including father’s Life
Link III overtime earnings in its calculation of father’s income for purposes of
his child-support obligation.

When establishing a parent’s original child-support obligation as part of a
dissolution, Minn. Stat. § 518A.29(b) (2018) provides that gross income includes overtime
pay except where a parent demonstrates the overtime began after the filing of the petition

2 The federal government provides retirement pay to veterans who have retired from the
Armed Forces after serving 20 years or more, and provides disabled members of the Armed
Forces with disability benefits. Howell, 137 S. Ct. at 1402-03. But in order to prevent
double counting, federal law requires that, to receive veterans’ disability payments, a
retired veteran must waive an equivalent amount of retirement pay. Id. at 1403. Although
father began receiving veterans’ disability payments when he retired, he was ineligible to
collect retirement pay because he ha d not yet reached the age of 60. See
10 U.S.C. § 12731(f)(1) (2018) (requiring a veteran to reach the age of 60 before he or she
is eligible to receive retirement pay). As a result, father has not yet waived his retirement
pay in lieu of his receiving veterans’ disability payments.

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for dissolution, and shows other factors are met. But in calculating income for purposes of
modifying child support, the district court applies a different statute, Minn. Stat. § 518A.39,
subd. 2 (2018). Under section 518A.39, su bdivision 2, overtime is included as income
unless the parent demonstrates that over time began after the entry of the existing
child-support order and other factors under the statute are met. Id.
Father argues that the district court e rroneously analyzed his motion to modify his
child-support obligation under section 518A.29(b), rather than section 518A.39,
subdivision 2. Mother acknowledged at oral argument that the district court erroneously
cited section 518A.29(b) in its conclusions of law. But she contends that the error was
harmless because the district court properly analyzed the overtime issue under section
518A.39, subdivision 2.
We agree with mother that any error by the district court was harmless and does not
require reversal. See Minn. R. Civ. P. 61 (requiring harmless error to be ignored); see also
Kallio v. Ford Motor Co., 407 N.W.2d 92, 98 (Minn. 1987 ) (“Although error may exist,
unless the error is prejudicial, no grounds exist for reversal.”). In its order, the district court
did not state that section 518A.29(b) was dispositive of the overtime issue, nor did it appear
to analyze the issue under that statute. Instead, the district court made findings addressing
the factors set forth in Minn. Stat. § 518A.39, subd. 2(e)(2), including whether the overtime
began after entry of the existi ng support order. The district court found that father’s
overtime with Life Link III began before, not af ter, the entry of the child-support order.
The district court specifically found that the parties’ dissolution judgment and decree
stated, as a factual finding, that father “has historically worked overtime at Life Link III

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and for the Army Reserves . . . .” The district court also found that father continues to be
employed by Life Link III, and that his annual income still includes overtime. The district
court then found that father’s
overtime did not begin after the filing of the petition for
dissolution or even the motion to modify child support, nor
does it reflect an increase in hi s work schedule or hours over
the past two years. He has consistently worked some overtime
and it should continue to be included in his parental income for
child support.

The district court’s finding that father’s “ overtime did not begin after the filing of the
petition for dissolution or even the motion to modify child support,” indicates that the
district court applied the proper standard under Minn. Stat. § 518A.39, subd. 2(e)(2), when
it determined that father’s overtime pay is to be included in his income for purposes of the
motion to modify child support.
Father further contends th at he “prevails regardless” of whether the standard in
Minn. Stat. § 518A.39 or Minn. Stat. § 518A.29, is used by the district court to address his
motion to modify his child-support obligation. We disagree. As addressed above, Minn.
Stat. § 518A.39, subd. 2(e)(2) provides that , on a motion for modification of support, the
district court “shall not consider compensa tion received by a party for employment in
excess of a 40-hour work week, provided that the party demonstrates, and the court finds,”
among other factors, “the excess employment began after entry of the existing support
order.” Minn. Stat. § 518A.39, subd. 2(e)(2)(i). Here, the district court found that father’s
overtime did not begin after the entry of th e judgment and decree, and that finding is
supported by the record. Because father fa iled to demonstrate this necessary factor

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enumerated in Minn. Stat. § 518A.39, subd. 2(e)(2)(i), he is unable to demonstrate a change
in employment circumstances with re spect to his overtime compensation. See Minn.
Stat. § 518A.39, subd. 1(e)(2) (requiring the moving party to establish all factors in order
for overtime compensation to be excluded). A ccordingly, the district court did not abuse
its discretion by denying father’s motion to modify his child-support obligation.
Affirmed.