Rebecca Ellen Bender, 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This opinion will be unpublished and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
A19-1611

Rebecca Ellen Bender,
Appellant,

vs.

Peter Howard Bernhard,
Respondent.

Filed June 22, 2020
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-FA-000281147

Rebecca E. Bender, Minnetonka, Minnesota (pro se appellant)

Michael P. Boulette, Molly N. Sigler, Barnes & Thornburg LLP, Minneapolis, Minnesota
(for respondent)

Considered and decided by Reilly, Pres iding Judge; Smith, Tracy M., Judge; and
Schellhas, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Rebecca Ellen Bender challenges the district court’s denial of her motion
to modify its child-support order. She argues that the district court erred in its interpretation
and application of the statut ory definition of “child” in Mi nn. Stat. § 518A.26, subd. 5
(2018), and clearly erred in its factual findings. We affirm.
FACTS
This dispute arises out of the dissolu tion of the marriage between Bender and
respondent Peter Howard Bernhard. The par ties’ marriage dissolved in February 2004,
although the proceedings continued until 200 6. Since 2006, there has been extensive
additional litigation in this file . One key point of contention has been the extent of the
parties’ son’s special needs. Their son, L.B ., was five years old at the time the marriage
dissolved and had developmen tal delays consistent with an autism diagnosis. Bender
argued that caring for L.B. prevented her from returning to full-time work as an attorney,
but the district court disagreed. Still, the district court ordered Bernhard to pay temporary
spousal maintenance until September 2007. The district court also ordered Bernhard to pay
child support until L.B.’s emancipation or furt her order from the court. Bender appealed,
and this court affirmed the decision. Bender v. Bernhard , No. A05-1545, 2006 WL
1704114, at *1 (Minn. App. June 20, 2006), review denied (Minn. Aug. 15, 2006).
After the divorce, L.B. continued to live with Bender. He attended several schools
during middle school and high school and performed well ac ademically. In the fall of

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L.B.’s senior year, L.B. was assessed to evaluate his upcoming transition out of high
school. The assessment found that L.B. exce lled in math and writing but struggled with
certain social activities. Soon after the asse ssment, but before L.B.’s graduation, Bender
moved the district court to continue child support beyond the child’s graduation from high
school. A child-support magistrate (CSM) de termined that L.B. was not capable of
supporting himself at that time. But, thou gh Bender requested that child support be
extended indefinitely, the CSM ordered that child support be continued only until L.B.
turned 21 years old. By order dated August 29, 2017, the district court adopted the CSM’s
decision.
L.B. went on to graduate high school and attend college in South Dakota on an
academic scholarship.1 He was also a member of the co llege’s basketball team. While at
college, L.B. lived with Bender, who had moved to South Dakota with him, because L.B.
could not sleep without total da rkness and he did not like the “bad smells or unexpected
noises” in the residence halls. L.B. soon withdrew from the school, however, after he was
dismissed from the basketball team for missing team events and practices.
After withdrawing from the college in So uth Dakota, L.B. underwent three hip
surgeries to address pain in his right hip. After his surgeries, L.B. applied to several other
colleges. He received offers of admission and two scholarships, but he declined them to
focus on rehabilitating for basketball.

1 Bender asserts that Bernhard incorrectly told the district court that L.B.’s scholarship was
a full academic scholarship when instead it was a partial one.

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As L.B. approached his 21s t birthday, Bender moved the district court again to
continue child support, as well as to orde r payment for unreimbursed/uninsured medical
expenses. As part of her mo tion, Bender included L.B.’s 2016 assessment and a new
assessment done in 2019 in preparation for the motion. Th e 2019 assessment confirmed
the autism diagnosis and stated that L.B. “lacks the executive func tioning needed to
manage his life without his mother’s support, direction, and limit setting.” It recommended
that L.B. attend counseling and stated that he qualified for social se rvices if his mother
chose to help him pursue them.
By order dated September 10, 2019, the district court determined that L.B. was not
incapable of self-support by r eason of physical or mental condition and denied Bender’s
request for indefinite child support. The distri ct court also concluded that, because L.B.
was emancipated, Bernhard was not obligated to provide medical support for L.B.
Bender appeals.
D E C I S I O N
Bender contends that the district court e rred in its interpretation of the statutory
definition of “child” and clearly erred in its factual findings when it denied her motion to
modify the child-support order. Appellate cour ts review the decision whether to modify
child support for an abuse of discretion. Haefele v. Haefele, 837 N.W.2d 703, 708 (Minn.
2013). A district court has broad discretion in denying modifications, but it abuses its
discretion when it resolves the question in a manner that is “against logic and the facts on
record.” Id. (quotation omitted). A district court’s f actual finding is clearly erroneous “if

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the reviewing court is left with the definite and firm conviction that a mistake has been
made.” Vangsness v. Vangsness , 607 N.W.2d 468, 472 (Minn. App. 2000) (quotations
omitted). To the extent that a case involves the interpretation of a statute, an appellate court
reviews that issue de novo. Haefele, 837 N.W.2d at 708.
A request to extend child support is akin to a request to modify a child-support order.
Schultz v. Schultz , 495 N.W.2d 463, 465-66 (Minn. App. 1993). A district court may
modify a child-support order upon a showing of a substantial change in circumstances that
makes the existing order unreasonable and unfair. Bormann v. Bormann, 644 N.W.2d 478,
480-81 (Minn. App. 2002); see Minn. Stat. § 518A.39, subd . 2(a) (2018) (describing
circumstances constituting a substantial cha nge). The party moving for modification of a
child-support order bears the burden of proof. Bormann, 644 N.W.2d at 481.
A. Burden of proof
Bender presents this motion to modify child support in a somewhat inverted light.
As noted, the moving party must show that circumstances have substantially changed. See
id.; Minn. Stat. § 518A.39 (2018). But Bender is, in many ways, arguing that circumstances
have not changed since the district court ordere d that child support continue until L.B.
turned 21. The l ack of improvement in L.B.’s ability to support himself, she asserts,
warrants continuing child suppor t. Bender goes on to argue that the situation has, if
anything, only worsened since the district court continued child support in 2017. Bender
claims that her position is consistent with the CSM’s 2017 order, arguing that the CSM
“stated that her decision need not be perman ent” and that the CSM “was, appropriately,

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giving an opportunity to the Fa mily Court in the future to examine the child’s present
situation.”
Despite Bender’s interpretation of the earlier child-support order, this matter arose
on a motion to modify a child-support order. Nothing in the 2017 CSM order or the district
court order adopting it indicates that the district court was reserving the question of whether
to extend child support indefinitely. Both orders state that child support will continue until
L.B. reaches the age of 21. Neither the CSM nor the district court elected to use the
language from the original order, which stated that child support would continue until L.B.
was emancipated; they instead chose a fixed of age 21. Bender thus has the burden of proof
as the party moving to modify the order. See Bormann, 644 N.W.2d at 481.
B. The district court did not clearly err by finding that L.B. is capable of
self-support.

A child-support obligation in a specific amount automatically terminates “upon the
emancipation of the child as provided under section 518A.26, subdivision 5.” Minn. Stat.
§ 518A.39, subd. 5. Section 518A.26, subdivi sion 5, defines “child” as “an individual
under 18 years of age, an individual under age 20 who is still attending secondary school,
or an individual who, by reas on of physical or mental cond ition, is incapable of self-
support.” Minn. Stat. § 518A.26, subd. 5. That an individual has been diagnosed with a
physical or mental condition does not necessarily mean that the individual is incapable of
self-support or that child support for that individual will automatically be extended beyond
the time the child reaches the age of majority. Cf. Hoppenrath v. Cullen, 383 N.W.2d 394,
395, 397 (Minn. App. 1986) (affirming the denial of a motion to extend child-support past

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the age of majority for a fou r-year-old child with Down Syndrome, in part because the
mother had not provided evidence on the extent of the child’s disability in the future).
The parties, Bender in particular, frame th e dispute as turning on whether L.B. is
“incapable of self-support” when the evidence indicates that he relies on his mother for
support in addressing certain social situati ons and daily routines. The statute does not
define “incapable of self-support.” Bender provides the following de finition, referencing
Merriam-Webster: “lacking capacity, ability, or qualif ication for the purpose” of being
“independent, self-sufficient, and self-reliant .” Bernhard provides a similar definition,
referencing the American Heritage Dictionary, defining it as “lacking the necessary ability,
capacity, or power” to “support[] oneself, espe cially financially, without the help of
others.”
Nothing in the district court’s order indicates that it interpreted or applied the phrase
“incapable of self-support” differently from the provided definitions. The district court
cited the relevant statutory language and expl ained that “self-support ” is not statutorily
defined. The district court cited cases on eman cipation, which, it noted, turn on the facts
and circumstances of each case, but also pointed out that earlier emancipation cases focus
on a parent’s legal right to control a child’s actions. See In re Fiihr , 184 N.W.2d 22, 25
(Minn. 1971); Streitz v. Streitz, 363 N.W.2d 135, 137 (Minn. App. 1985). The district court
went on to conclude that, while L.B. faces challenges, those ch allenges do not rise to the
“level that, by reason of physical or mental condition, [L.B.] is incapable of self-support.”

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The district court’s conclusion relies on th e district court’s factual finding that
L.B.’s mental condition does not make him in capable of self-suppor t. Appellate courts
review a district court’s f actual findings for clear error. See Haefele, 837 N.W.2d at 708.
While the district court’s findings describe the challenges that L.B. faces, they also describe
L.B.’s academic success and note how part of L.B.’s 2019 assessment indicates “the need
for low intensity community-based services.” The district court’s findings also observe that
L.B. made choices about continuing with colle ge and has expressed interest in pursuing
certain jobs. The district court’s findings ar e supported by the record. Although Bender
presented evidence that might support another outcome, the fact that another district court
might reach a different determination on the presented evidence is insufficient to show that
the district court’s findings are clearly erroneous. See Vangsness, 607 N.W.2d at 474.
Bender challenges the district court’s determination on a number of additional
grounds. First, she argues that the district court incorrectly considered L.B.’s future
potential ability to support himself, which goes beyond the terms of the statute. But this
argument mischaracterizes the district cour t’s factual determinations addressing the
causation requirement of the statute. An individual that is incapable of self-support is only
defined as a “child” under Minn. Stat. § 518A.26, subd. 5, if that incapability is “by reason
of physical or mental condition.” While L.B. has multiple mental-health diagnoses, the
district court concluded that these do not make him incapable of self-support. It is true that
the district court found that L.B. “is in need of assistance in strengthening his abilities to
live independently, obtain career counseling, and finding a college program that meets his

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needs,” but, in so finding, the district cour t was not considering L.B.’s future ability to
support himself—it was anal yzing his present capability, with some assistance and
counseling, to self-support.
Second, Bender argues that the district court imposed two additional requirements
to continue child support that are not based on the statute. Specifically, Bender states that
the district court added a requirement th at she demonstrate that L.B. was under
guardianship and that she has a legal right to control his actions. But a review of the district
court order shows that it did not impose such a requirement. The district court did note in
its order that Bender did not have the legal authority to control L.B.’s actions after the age
of emancipation. L.B.’s legal authority to make his own decisions is relevant to assessing
the impact of L.B.’s diagnoses on his capability to self-support. But nothing in the district
court’s order indicates that it viewed who had the authority to control L.B.’s actions as
dispositive in either direction. The dist rict court did not im pose extra-statutory
requirements upon Bender’s motion to extend child support.
Third and lastly, Bender asse rts that the district cour t did not follow precedent
regarding emancipation of a child. She argues that, once she established a prima facie case
that L.B. was not self-supporting, Bernhard had a burden to prove emancipation. As
discussed above, however, because Bender wa s moving to modify a child-support order,
she bore the burden of proof. 2 Bender also argues that the dist rict court failed to evaluate

2 Bender cites Lufkin v. Harvey: “Emancipation is not, howeve r, to be presumed. It must
be proved.” 154 N.W. 1097, 1098 (Minn. 1915). But she doe s not provide any of the

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factors required by Minnesota courts in determining emancipation. She cites three cases in
which appellate courts highlighted facts such as whethe r the individual still lived with a
parent and whether the parent or the indivi dual paid for the individual’s expenses as
indications of whether the individual was emancipated. See Cummins v. Redman , 251
N.W.2d 343, 345 (Minn. 1977) (holding th at a child who lived at home and had her
expenses paid by a parent was not emancipated); Fiihr, 184 N.W.2d at 24-25 (concluding
that a 19-year-old woman was emancipated because she lived on her own and was not
financially supported by her parents); Streitz, 363 N.W.2d at 136-37 (concluding that it
was not clearly erroneous to determine that a daughter was not em ancipated because she
lived at home intermittently and her mother paid for some of her expenses). But applying
those cases here would address only whether L.B. is currently supporting himself; it would
not address whether L.B. is capable of self-support, nor whether, if he is incapable of self-
support, it is by reason of p hysical or mental condition. B ecause the district court was
deciding these latter questions, it did not e rroneously fail to follow the caselaw cited by
Bender.
C. Bender’s other factual arguments
Bender also alleges a number of factual er rors that she believes the district court
made. But none of the alleged factual errors show that the district court erred when it

procedural context of the case. Lufkin did not arise out of a motion to modify child support,
id. at 1097, and the burdens of proof were not the same as in this case.

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concluded that the challenges facing L.B. “do not rise to a level that, by reason of physical
or mental condition, [L.B.] is incapable of self-support.”
Bender’s primary allegation of clear error is that the district court mischaracterized
the degree of support needed by L.B. to function in his day-to-day life. The district court
notes that the most recent assessment stated that L.B. had taken a “Locus Assessment,”
which placed him in “Level II.” The assessment stated that level II “indicates the need for
low intensity community -based services.” Bender argues th at the assessments state that
L.B. was “level 2 in severity of symptoms,” which means he required “substantial support”
in the areas of “social communication” and “restricted, repetitive patterns of behaviors.”
It is not clear from the record what “s ubstantial support” in the context of the
assessment means, nor is it clear how need ing “substantial support” ties into L.B.’s
capability to self-support.3 Nothing in the record equates requiring “substantial support”—
to address social communication and restricted, repetitive behaviors—with being incapable
of self-support.
But more importantly, both assessments indi cate that L.B. is mentally capable,
mental-health diagnoses included, of addre ssing his challenges with counseling. Neither
assessment indicates that L.B. requires indefi nite support from his parents. Again, while

3 Bender refers to federal law and state law defining the criteria for a diagnosis of Autism
Spectrum Disorder and its connection with the requirement for “substantial support.” But
Bender does not cite authority that indicates a disability di agnosis is dispositive in the
determination of whether an individual is incapable of self-support. This court has
indicated that a diagnosis alone is not enough to establish that a child is incapable of self-
support. Cf. Hoppenrath, 383 N.W.2d at 395, 397.

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there is room in the assessments for a different court to potentially make different findings,
and Bender presented facts in support of her position, the district court’s findings were not
clearly erroneous.
Bender points to other aspects of the dist rict court’s findings that she believes are
clearly erroneous. These alleged errors are la rgely superficial errors with respect to the
material issue4 or not errors at all, 5 but, more importantly, Bende r does not elaborate on
how these errors amount to reversible error with respect to the district court’s determination
that L.B. was not incapable of self-support by reason of mental condition.
In sum, we conclude that the district c ourt did not commit legal or factual error in
denying Bender’s motion to amend its child-support order.
Affirmed.

4 Bender asserts that L.B. only had a partial scholarship, not a full on e, to attend college.
Bender also asserts that the district court inserted the word “often” into her testimony about
L.B. looking for jobs in the newspaper and removed the word “only” in her argument about
the importance of an economic assessment.

5 For instance, Bender asserts that it was inac curate to say there was no expert testimony
because she submitted expert reports, but no experts testified at the hearing on the motion.
Bender also claims the district court mist akenly interpreted a sarcastic comment from
Bernhard about L.B. working in the basketball industry as evidence that he had worked in
the industry, but the district court order only states that Bernhard thinks L.B. can work,
potentially in the basketball industry.