State of MN ex rel. Kandiyohi County Family Services, Plaintiff, o/b/o Kristi A. Barber, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1547

State of MN ex rel. Kandiyohi County Family Services, Plaintiff, o/b/o Kristi A. Barber,
Appellant,

vs.

Nathan W. Koering,
Respondent.

Filed September 7, 2021
Affirmed in part, reversed in part, and remanded
Bryan, Judge

Kandiyohi County District Court
File No. 34-F2-02-001558

Kristi A. Barber, Spicer, Minnesota (pro se appellant)

Nathan W. Koering, Grand Forks, North Dakota (pro se respondent)

Considered and decided by Johnson, Presid ing Judge; Bryan, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this child support modification dispute, appellant raises two primary challenges
to the decision by the child support magistrate (CSM). First, appellant argues that the CSM
abused its discretion when it denied her motion for a continuance. Second, appellant argues
that the CSM erred when it denied her moti on for an upward deviation from the child
support guidelines. We conclude that the CSM did not abuse its discretion in denying the

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continuance motion and affirm this decision. However, because the CSM failed to analyze
the applicable statutory factors regarding deviations from the child support guidelines, we
reverse and remand the CSM’s decision denying appellant’s deviation request.
FACTS
Appellant Kristi Barber and respondent Na than Koering were previously married
and have two children, T.B. and J.B. They were divorced in 2005. On November 5, 2018,
the district court revised the previous pa renting time schedule, permitting Koering to
exercise parenting time with J.B. for “two weeks of each month,” for a total of 168
overnights annually. The November 5, 2018 order also permitted Ko ering to exercise
parenting time with [T.B.] “at a minimum of every other weekend and other times as [T.B.]
desires.” Both parties subseque ntly requested modification of child support. In an order
dated March 4, 2019, the CSM denied Koeri ng’s request to modify child support and
denied Barber’s request for an upward deviation.1
After T.B. graduated from high school, Koering moved for a modification of child
support based on the emancipati on of T.B. Koering sent th e motion by email to Barber
and informed Barber of the hearing date of August 7, 2020. On June 30, 2020, Barber
moved to continue the August 7, 2020 hearing date. In support of the continuance motion,
Barber argued that Koering had failed to provi de her with proper no tice of the August 7,
2020 hearing because he ha d not served the modificati on motion and accompanying

1 The CSM denied Barber’s deviation request in conclusory fashion: “[Barber] requested
an upward deviation from the Minnesota Child Support Guidelines. There is no basis for
a deviation and [Barber] has not met her burden pursuant to Minn. Stat. 518A.43.” The
March 4, 2019 order does not include any additional analysis.

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affidavit by mail or in person. In addition, Barber argued that the CSM should wait to hold
a hearing on the child support modification motion until afte r the district court filed an
order deciding the parenting time modification motions pending before it. On June 30,
2020, the district court informed Koering that his child support modification pleadings did
not comply with the applicab le rules. Koering properly served and filed an amended
motion to modify child support on July 13, 2020, and on July 16, 2020, three weeks prior
to the scheduled hearing, the CSM denied Barber’s motion for a continuance. Separately,
on June 30, 2020, Barber also filed a respon sive motion opposing Koering’s request to
modify child support. In support of her re sponsive motion, Barber filed an 11-page
affidavit and 82 pages of exhibits. In the responsive motion, Barber requested an upward
deviation from the otherwise applicable child support guidelines obligation, among other
requests.2
Barber and Koering attended the scheduled hearing on August 7, 2020, and both
parties presented arguments and made statem ents to the CSM. On October 9, 2020, 3 the
CSM issued an order granting Koering’s mo tion to modify child support based on the
emancipation of T.B. and deny ing Barber’s request for an upward deviation. The CSM
made the following findings: Koering’s gross monthly income was $11,586; Barber’s gross
monthly income was $3,250; Koering’s percentage share of the combined parental income

2 Barber requested an increase in Koering’ s basic and medical support obligations, an
increase in Koering’s arrearage payments, and that the children be added to Barber’s health
insurance policy. Barber does not appeal the decisions regarding these requests.
3 The CSM initially issued an order that referenced the parenting time schedule in place
prior to November 5, 2018. After Koering f iled a request to reconsider, the CSM issued
the amended order on October 9, 2020, reflecting the correct parenting time schedule.

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was 78%; Barber’s percentage share of th e combined parental income was 22%; the
combined basic support obligation for J. B. was $1,872; and Koering exercised 168
overnights each year. Based on those findi ngs, and after applying the parenting time
adjustment for Koering, the CSM calculate d Koering’s monthly basic child support
obligation to be $743. The CSM included a single paragraph regarding Barber’s request
for an upward deviation, summarily concluding that the request had no merit:
[Barber] has previously made requests for an upward
deviation. The court has previously found there is no basis for
an upward deviation. [T]he court’s order dated March 4, 2019,
noted that [Barber] had not me t her burden pursuant to Minn.
Stat. § 518A.43. In this case , with the facts and evidence
presented by [Barber], there is no basis for an upward deviation
and the request for an upward deviation is denied.

Barber appeals.
DECISION
I. Denial of Barber’s Request for Continuance
Barber first argues that the CSM abused its discretion when it denied her motion for
a continuance in the July 16, 2020 order.4 Because Barber did not establish good cause to
continue the hearing, we conclude that the CSM did not abuse its discretion when it denied
Barber’s continuance motion.

4 In her brief, Barber also challenges the parenting time decision made by the district court.
We need not address this i ssue because Barber separately appealed the parenting time
order, and we dismissed that appeal. Koering v. Barber, No. A21-0281 (Minn. App. Mar.
23, 2021). Barber also argues that the CSM erred by relying on the November 5, 2018
order instead of the actual parenting time that Koering had exercised. The CSM properly
relied on the court order because the parenting time expense adjustment must be based on
the parenting time that “a child is scheduled to spend with the parent during a calendar year
according to a court order.” Minn. Stat. § 518A.36, subd. 1 (2020) (emphasis added).

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Rule 364.05 of the Minnesota General Rules of Practice governs the continuance of
a child support hearing in the expedited process: “Upon . . . a showing of good cause, the
child support magistrate may grant a request for continuance of a hearing. . . . In
determining whether good cause exists, due regard shall be given to the ability of the party
requesting a continuance to e ffectively proceed without a c ontinuance.” The decision to
grant or deny a continuance is “within the sound discretion of the district court, and its
decision will not be reversed unless it has abused its discretion.” Dunham v. Roer , 708
N.W.2d 552, 572 (Minn. App. 2006), review denied (Minn. Mar. 28, 2006); see also
Dunshee v. Douglas , 255 N.W.2d 42, 45 (Minn. 1977 ) (requiring a “clear abuse of
discretion”); Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Min n. App. 2000) (applying
the same standard of review to a decision made by a CSM that would apply if the decision
had been made by a district court judge).
Barber based the continuanc e request on the fact that Koering initially sent his
motion to her by email only, and did not serve her by mail or in person. In addition, Barber
argued that the CSM should continue the hear ing until after the district court decided the
pending parenting time modification motion. The CSM’s decision to deny Barber’s
continuance request was not an abuse of disc retion for three reasons. First, Barber had
more time than required under the applicable rules to prep are for the August 7, 2020
hearing. Koering properly served the am ended motion on July 13, which was 25 days
before the scheduled hearing. See Minn. R. Gen. Prac. 364.02 (requiring the moving party
to obtain a hearing date and to notify all other parties of the hearing date “at least 14 days
before the scheduled hearing”); Minn. R. Gen. Prac. 372.01, subd. 1 (requiring motions to

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modify an existing support order be served “at least 21 days before any scheduled
hearing”); Minn. R. Gen. Prac. 372.06, subd. 1 (permitting the moving party to amend its
motion “[a]t any time up to 14 days before a scheduled hearing”).
Second, Barber failed to explain how th e timing of the August 7, 2020 hearing
prevented her from being adequately prepared . Not only did Barber fail to make the
showing required by Rule 364.05, but Barber’s conduct in this case supports the opposite
conclusion. Barber filed a substantive response on June 30, 2020, that included nearly 100
pages of sworn statements and exhibits in opposition to Koer ing’s child support
modification motion. This fili ng, made 38 days prior to the scheduled hearing, indicates
that Barber was not prevented from “effectiv ely proceed[ing] without a continuance.”
Minn. R. Gen. Prac. 364.05. In the absence of an explanation of how her preparation was
impeded and in light of the opposition that Barber was able to mount, we discern no abuse
of discretion in the CSM’s decision denying Barber’s requested continuance.
Third, because Koering’s motion to m odify child support stemmed from the
emancipation of T.B., the pending parentin g time motions regarding J.B. would not
constitute good cause to con tinue the child support heari ng on August 7, 2020. Any
changes to parenting time regard ing J.B. would necessarily be the subject of a separate,
future child support modification motion. Therefore, the CSM did not abuse its discretion
when it denied Barber’s continuance request.

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II. Denial of Barber’s Re quest for Upward Deviation
Barber argues that the CSM erred when it denied her request for an upward deviation
in the October 9, 2020 order. Because the CSM did not expressly address the requisite
statutory factors that apply to deviation requests, we are unable to review this decision.
Deviations from the child support guidelin es are controlled by Minnesota statues
section 518A.43 (2020). The relevant language states:
In addition to the child suppor t guidelines and other factors
used to calculate th e child support obligation under section
518A.34, the court must take into consideration the following
factors in setting or modifying child support or in determining
whether to deviate upward or downward from the presumptive
child support obligation:

(1) all earnings, income, circumstances, and resources
of each parent, including real and personal property, but
excluding income from excess employment of the obligor or
obligee that meets the criteria of section 518A.29, paragraph
(b);
(2) the extraordinary fina ncial needs and resources,
physical and emotional condition, and educational needs of the
child to be supported;
(3) the standard of living the child would enjoy if the
parents were currently living together, but recognizing that the
parents now have separate households;
(4) whether the child resides in a foreign country for more
than one year that has a substantially higher or lower cost of living
than this country;
(5) which parent receives the income taxation dependency
exemption and the financial benefit the parent receives from it;
(6) the parents’ debts as provided in subdivision 2; and
(7) the obligor’s total payments for court-ordered child
support exceed the limitations set forth in section 571.922.

Minn. Stat. § 518A.43, subd. 1 (emphasis added). A district court may deviate to prevent
the children and either parent from living in poverty. Id.; see also Marden v. Marden, 546

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N.W.2d 25, 29 (Minn. App. 1996 ) (noting that “a court may deviate upward from the
guidelines if the custodial parent is unable to sustain a child’s accustomed standard of
living, and the obligor has the ability to do so”). The district court has broad discretion to
provide for the support of the parties’ children and will only be reversed for an abuse of
that discretion. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).
In the October 9, 2020 order, the CSM in cluded a summary denial of Barber’s
deviation request, noting that in the March 4, 2019 order, the CSM previously concluded
that “there is no basis for an upward devia tion.” The CSM did not, however, address the
statutory factors in either the March 4, 2019 order or the October 9, 2020 order. Nor did
the CSM determine whether any circumstan ces had changed regarding any of the
applicable statutory factors since March 4, 2019 . Absent some analysis of the applicable
statutory factors, we are unable to determin e whether the CSM abused its discretion in
denying Barber’s deviation request. We reverse and remand to the CSM for further
findings and analysis pursuant to section 518A.43, subdivision 1. On remand, the CSM is
instructed not to reopen the r ecord but to consider the evid ence and submissions made to
the CSM as of the date of the October 9, 2020 order.
Affirmed in part, reversed in part, and remanded.