Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 1991, Regular Session
Key: (1) language to be deleted (2) new language
Laws of Minnesota 1991
CHAPTER 266-H.F.No. 317
An act relating to marriage dissolution; clarifying
procedure for modification of certain custody orders;
providing for additional child support payments;
providing an alternative form of satisfaction of child
support obligation; imposing a fiduciary duty and
providing for compensation in cases of breach of that
duty; clarifying certain mediation procedures;
providing for attorneys' fees in certain cases;
clarifying language concerning certain motions;
imposing penalties; modifying provisions dealing with
cost-of-living adjustments; providing for interest on
family law orders; amending Minnesota Statutes 1990,
sections 518.18; 518.551, subdivision 5; 518.57, by
adding a subdivision; 518.58, subdivision 1, and by
adding a subdivision; 518.619, subdivision 6; 518.64,
subdivision 2; 518.641, subdivisions 1 and 2; and
549.09, subdivision 1.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1990, section 518.18, is
amended to read:
518.18 [MODIFICATION OF ORDER.]
(a) Unless agreed to in writing by the parties, no motion
to modify a custody order may be made earlier than one year
after the date of the entry of a decree of dissolution or legal
separation containing a provision dealing with custody, except
in accordance with paragraph (c).
(b) If a motion for modification has been heard, whether or
not it was granted, unless agreed to in writing by the parties
no subsequent motion may be filed within two years after
disposition of the prior motion on its merits, except in
accordance with paragraph (c).
(c) The time limitations prescribed in paragraphs (a) and
(b) shall not prohibit a motion to modify a custody order if the
court finds that there is persistent and willful denial or
interference with visitation, or has reason to believe that the
child's present environment may endanger the child's physical or
emotional health or impair the child's emotional development.
(d) If the court has jurisdiction to determine child
custody matters, the court shall not modify a prior custody
order unless it finds, upon the basis of facts that have arisen
since the prior order or that were unknown to the court at the
time of the prior order, that a change has occurred in the
circumstances of the child or the custodian parties and that the
modification is necessary to serve the best interests of the
child. In applying these standards the court shall retain the
custodian custody arrangement established by the prior order
unless:
(i) the custodian agrees both parties agree to the
modification;
(ii) the child has been integrated into the family of the
petitioner with the consent of the custodian other party; or
(iii) the child's present environment endangers the child's
physical or emotional health or impairs the child's emotional
development and the harm likely to be caused by a change of
environment is outweighed by the advantage of a change to the
child.
In addition, a court may modify a custody order under
section 631.52.
(e) In deciding whether to modify a prior joint custody
order, the court shall apply the standards set forth in
paragraph (d) unless: (1) the parties agree in writing to the
application of a different standard, or (2) the party seeking
the modification is asking the court for permission to move the
residence of the child to another state.
Sec. 2. Minnesota Statutes 1990, section 518.551,
subdivision 5, is amended to read:
Subd. 5. [NOTICE TO PUBLIC AUTHORITY; GUIDELINES.] (a) The
petitioner shall notify the public authority of all proceedings
for dissolution, legal separation, determination of parentage or
for the custody of a child, if either party is receiving aid to
families with dependent children or applies for it subsequent to
the commencement of the proceeding. After receipt of the
notice, the court shall set child support as provided in this
subdivision. The court may order either or both parents owing a
duty of support to a child of the marriage to pay an amount
reasonable or necessary for the child's support, without regard
to marital misconduct. The court shall approve a child support
agreement of the parties if each party is represented by
independent counsel, unless the agreement is not in the interest
of justice. In other cases the court shall determine and order
child support in a specific dollar amount in accordance with the
guidelines and the other factors set forth in paragraph (b) and
any departure therefrom. The court may also order the obligor
to pay child support in the form of a percentage share of the
obligor's net bonuses, commissions, or other forms of
compensation, in addition to, or if the obligor receives no base
pay, in lieu of, an order for a specific dollar amount.
The court shall derive a specific dollar amount by
multiplying the obligor's net income by the percentage indicated
by the following guidelines:
Net Income Per Number of Children
Month of Obligor
1 2 3 4 5 6 7 or
more
$400 and Below Order based on the ability of the
obligor to provide support
at these income levels, or at higher
levels, if the obligor has
the earning ability.
$401 - 500 14% 17% 20% 22% 24% 26% 28%
$501 - 550 15% 18% 21% 24% 26% 28% 30%
$551 - 600 16% 19% 22% 25% 28% 30% 32%
$601 - 650 17% 21% 24% 27% 29% 32% 34%
$651 - 700 18% 22% 25% 28% 31% 34% 36%
$701 - 750 19% 23% 27% 30% 33% 36% 38%
$751 - 800 20% 24% 28% 31% 35% 38% 40%
$801 - 850 21% 25% 29% 33% 36% 40% 42%
$851 - 900 22% 27% 31% 34% 38% 41% 44%
$901 - 950 23% 28% 32% 36% 40% 43% 46%
$951 - 1000 24% 29% 34% 38% 41% 45% 48%
$1001- 4000 25% 30% 35% 39% 43% 47% 50%
Guidelines for support for an obligor with a monthly income
of $4,001 or more shall be the same dollar amounts as provided
for in the guidelines for an obligor with a monthly income of
$4,000.
Net Income defined as:
Total monthly
income less *(i) Federal Income Tax
*(ii) State Income Tax
(iii) Social Security
Deductions
(iv) Reasonable
Pension Deductions
*Standard
Deductions apply- (v) Union Dues
use of tax tables (vi) Cost of Dependent Health
recommended Insurance Coverage
(vii) Cost of Individual or Group
Health/Hospitalization
Coverage or an
Amount for Actual
Medical Expenses
(viii) A Child Support or
Maintenance Order that is
Currently Being Paid.
"Net income" does not include:
(1) the income of the obligor's spouse, but does include
in-kind payments received by the obligor in the course of
employment, self-employment, or operation of a business if the
payments reduce the obligor's living expenses; or
(2) compensation received by a party for employment in
excess of a 40-hour work week, provided that:
(a) support is nonetheless ordered in an amount at least
equal to the guidelines amount based on income not excluded
under this clause; and
(b) the party demonstrates, and the court finds, that:
(i) the excess employment began after the filing of the
petition for dissolution;
(ii) the excess employment reflects an increase in the work
schedule or hours worked over that of the two years immediately
preceding the filing of the petition;
(iii) the excess employment is voluntary and not a
condition of employment;
(iv) the excess employment is in the nature of additional,
part-time or overtime employment compensable by the hour or
fraction of an hour; and
(v) the party's compensation structure has not been changed
for the purpose of affecting a support or maintenance obligation.
(b) In addition to the child support guidelines, the court
shall take into consideration the following factors in setting
or modifying child support:
(1) all earnings, income, and resources of the parents,
including real and personal property, but excluding income from
excess employment of the obligor or obligee that meets the
criteria of paragraph (a), clause (2)(b);
(2) the financial needs and resources, physical and
emotional condition, and educational needs of the child or
children to be supported;
(3) the standards of living the child would have enjoyed
had the marriage not been dissolved, but recognizing that the
parents now have separate households;
(4) the amount of the aid to families with dependent
children grant for the child or children;
(5) which parent receives the income taxation dependency
exemption and what financial benefit the parent receives from
it; and
(6) the parents' debts as provided in paragraph (c).
(c) In establishing or modifying a support obligation, the
court may consider debts owed to private creditors, but only if:
(1) the right to support has not been assigned under
section 256.74;
(2) the court determines that the debt was reasonably
incurred for necessary support of the child or parent or for the
necessary generation of income. If the debt was incurred for
the necessary generation of income, the court shall consider
only the amount of debt that is essential to the continuing
generation of income; and
(3) the party requesting a departure produces a sworn
schedule of the debts, with supporting documentation, showing
goods or services purchased, the recipient of them, the amount
of the original debt, the outstanding balance, the monthly
payment, and the number of months until the debt will be fully
paid.
Any schedule prepared under paragraph (c), clause (3),
shall contain a statement that the debt will be fully paid after
the number of months shown in the schedule, barring emergencies
beyond the party's control.
Any further departure below the guidelines that is based on
a consideration of debts owed to private creditors shall not
exceed 18 months in duration, after which the support shall
increase automatically to the level ordered by the court.
Nothing in this section shall be construed to prohibit one or
more step increases in support to reflect debt retirement during
the 18-month period.
Where payment of debt is ordered pursuant to this section,
the payment shall be ordered to be in the nature of child
support.
(d) Nothing shall preclude the court from receiving
evidence on the above factors to determine if the guidelines
should be exceeded or modified in a particular case.
(e) The above guidelines are binding in each case unless
the court makes express findings of fact as to the reason for
departure below or above the guidelines.
Sec. 3. Minnesota Statutes 1990, section 518.57, is
amended by adding a subdivision to read:
Subd. 3. [SATISFACTION OF CHILD SUPPORT OBLIGATION.] The
court may conclude that an obligor has satisfied a child support
obligation by providing a home, care, and support for the child
while the child is living with the obligor, if the court finds
that the child was integrated into the family of the obligor
with the consent of the obligee and child support payments were
not assigned to the public agency under section 256.74.
Sec. 4. Minnesota Statutes 1990, section 518.58,
subdivision 1, is amended to read:
Subdivision 1. [GENERAL.] Upon a dissolution of a
marriage, an annulment, or in a proceeding for disposition of
property following a dissolution of marriage by a court which
lacked personal jurisdiction over the absent spouse or lacked
jurisdiction to dispose of the property and which has since
acquired jurisdiction, the court shall make a just and equitable
division of the marital property of the parties without regard
to marital misconduct, after making findings regarding the
division of the property. The court shall base its findings on
all relevant factors including the length of the marriage, any
prior marriage of a party, the age, health, station, occupation,
amount and sources of income, vocational skills, employability,
estate, liabilities, needs, opportunity for future acquisition
of capital assets, and income of each party. The court shall
also consider the contribution of each in the acquisition,
preservation, depreciation or appreciation in the amount or
value of the marital property, as well as the contribution of a
spouse as a homemaker. It shall be conclusively presumed that
each spouse made a substantial contribution to the acquisition
of income and property while they were living together as
husband and wife. The court may also award to either spouse the
household goods and furniture of the parties, whether or not
acquired during the marriage. The court shall value marital
assets for purposes of division between the parties as of the
day of the initially scheduled prehearing settlement conference,
unless a different date is agreed upon by the parties, or unless
the court makes specific findings that another date of valuation
is fair and equitable. If there is a substantial change in
value of an asset between the date of valuation and the final
distribution, the court may adjust the valuation of that asset
as necessary to effect an equitable distribution. During the
pendency of a marriage dissolution or annulment proceeding, each
party owes a fiduciary duty to the other for any profit or loss
derived by the party, without consent of the other, from a
transaction or from any use by the party of the marital assets.
Sec. 5. Minnesota Statutes 1990, section 518.58, is
amended by adding a subdivision to read:
Subd. 1a. [TRANSFER, ENCUMBRANCE, CONCEALMENT, OR
DISPOSITION OF MARITAL ASSETS.] During the pendency of a
marriage dissolution, separation, or annulment proceeding, or in
contemplation of commencing a marriage dissolution, separation,
or annulment proceeding, each party owes a fiduciary duty to the
other for any profit or loss derived by the party, without the
consent of the other, from a transaction or from any use by the
party of the marital assets. If the court finds that a party to
a marriage, without consent of the other party, has in
contemplation of commencing, or during the pendency of, the
current dissolution, separation, or annulment proceeding,
transferred, encumbered, concealed, or disposed of marital
assets except in the usual course of business or for the
necessities of life, the court shall compensate the other party
by placing both parties in the same position that they would
have been in had the transfer, encumbrance, concealment, or
disposal not occurred. The burden of proof under this
subdivision is on the party claiming that the other party
transferred, encumbered, concealed, or disposed of marital
assets in contemplation of commencing or during the pendency of
the current dissolution, separation, or annulment proceeding,
without consent of the claiming party, and that the transfer,
encumbrance, concealment, or disposal was not in the usual
course of business or for the necessities of life. In
compensating a party under this section, the court, in dividing
the marital property, may impute the entire value of an asset
and a fair return on the asset to the party who transferred,
encumbered, concealed, or disposed of it. The absence of a
restraining order against the transfer, encumbrance,
concealment, or disposal of marital property is not available as
a defense under this subdivision.
Sec. 6. Minnesota Statutes 1990, section 518.619,
subdivision 6, is amended to read:
Subd. 6. [MEDIATOR RECOMMENDATIONS.] When the parties have
not reached agreement as a result of the mediation proceeding,
the mediator may recommend to the court that an investigation be
conducted under section 518.167, or that other action be taken
to assist the parties to resolve the controversy before hearing
on the issues. The mediator may not conduct the
investigation or evaluation unless: (1) the parties agree in
writing, executed after the termination of mediation, that the
mediator may conduct the investigation or evaluation, or (2)
there is no other person reasonably available to conduct the
investigation or evaluation. The mediator may recommend that
mutual restraining orders be issued in appropriate cases,
pending determination of the controversy, to protect the
well-being of the children involved in the controversy.
Sec. 7. Minnesota Statutes 1990, section 518.64,
subdivision 2, is amended to read:
Subd. 2. [MODIFICATION.] (a) The terms of a decree
respecting maintenance or support may be modified upon a showing
of one or more of the following: (1) substantially increased or
decreased earnings of a party; (2) substantially increased or
decreased need of a party; (3) receipt of assistance under
sections 256.72 to 256.87; or (4) a change in the cost of living
for either party as measured by the federal bureau of
statistics, any of which makes the terms unreasonable and unfair.
(b) On a motion for modification of maintenance, including
a motion for the extension of the duration of a maintenance
award, the court shall apply, in addition to all other relevant
factors, the factors for an award of maintenance under section
518.552 that exist at the time of the motion. On a motion for
modification of support, the court:
(1) shall take into consideration the needs of the children
and shall not consider the financial circumstances of each
party's spouse, if any; and
(2) shall not consider compensation received by a party for
employment in excess of a 40-hour work week, provided that the
party demonstrates, and the court finds, that:
(i) the excess employment began after entry of the existing
support order;
(ii) the excess employment is voluntary and not a condition
of employment;
(iii) the excess employment is in the nature of additional,
part-time employment, or overtime employment compensable by the
hour or fractions of an hour;
(iv) the party's compensation structure has not been
changed for the purpose of affecting a support or maintenance
obligation;
(v) in the case of an obligor, current child support
payments are at least equal to the guidelines amount based on
income not excluded under this clause; and
(vi) in the case of an obligor who is in arrears in child
support payments to the obligee, any net income from excess
employment must be used to pay the arrearages until the
arrearages are paid in full.
(c) A modification of support or maintenance may be made
retroactive only with respect to any period during which the
petitioning party has pending a motion for modification but only
from the date of service of notice of the motion on the
responding party. However, modification may be applied to an
earlier period if the court makes express findings that the
party seeking modification was precluded from serving a motion
by reason of a significant physical or mental disability or a
material misrepresentation of another party and that the party
seeking modification, when no longer precluded, promptly served
a motion.
(d) Except for an award of the right of occupancy of the
homestead, provided in section 518.63, all divisions of real and
personal property provided by section 518.58 shall be final, and
may be revoked or modified only where the court finds the
existence of conditions that justify reopening a judgment under
the laws of this state, including motions under section 518.145,
subdivision 2. The court may impose a lien or charge on the
divided property at any time while the property, or subsequently
acquired property, is owned by the parties or either of them,
for the payment of maintenance or support money, or may
sequester the property as is provided by section 518.24.
(e) The court need not hold an evidentiary hearing on a
motion for modification of maintenance or support.
(f) Section 518.14 shall govern the award of attorney fees
for motions brought under this subdivision.
Sec. 8. Minnesota Statutes 1990, section 518.641,
subdivision 1, is amended to read:
Subdivision 1. [REQUIREMENT.] An order for maintenance or
child support shall provide for a biennial adjustment in the
amount to be paid based on a change in the cost of living. An
order that provides for a cost-of-living adjustment shall
specify the cost-of-living index to be applied and the date on
which the cost-of-living adjustment shall become effective. The
court may use the consumer price index for all urban consumers,
Minneapolis-St. Paul (CPI-U), the consumer price index for wage
earners and clerical, Minneapolis-St. Paul (CPI-W), or another
cost-of-living index published by the department of labor which
it specifically finds is more appropriate. The court may
specify that the housing component be excluded from the
cost-of-living adjustment. Cost-of-living increases under this
section shall be compounded. The court may also increase the
amount by more than the cost-of-living adjustment by agreement
of the parties or by making further findings. The adjustment
becomes effective on the first of May of the year in which it is
made, for cases in which payment is made to the public
authority. For cases in which payment is not made to the public
authority, application for an adjustment may be made in any
month but no application for an adjustment may be made sooner
than two years after the date of the dissolution decree. A
court may waive the requirement of the cost-of-living clause if
it expressly finds that the obligor's occupation or income, or
both, does not provide for cost-of-living adjustment or that the
order for maintenance or child support has a provision such as a
step increase that has the effect of a cost-of-living clause.
The court may waive a cost-of-living adjustment in a maintenance
order if the parties so agree in writing. The commissioner of
human services may promulgate rules for child support
adjustments under this section in accordance with the rulemaking
provisions of chapter 14.
Sec. 9. Minnesota Statutes 1990, section 518.641,
subdivision 2, is amended to read:
Subd. 2. [CONDITIONS.] No adjustment under this section
may be made unless the order provides for it and until the
following conditions are met:
(a) the obligee or public authority serves notice of its
application for adjustment by mail on the obligor at the
obligor's last known address at least 20 days before the
effective date of the adjustment;
(b) the notice to the obligor shall inform informs the
obligor that an of the date on which the adjustment in payments
shall will become effective on the first of May; and
(c) after receipt of notice and before the effective day of
the adjustment, the obligor fails to request a hearing on the
issue of whether the adjustment should take effect, and ex
parte, to stay imposition of the adjustment pending outcome of
the hearing.
Sec. 10. Minnesota Statutes 1990, section 549.09,
subdivision 1, is amended to read:
Subdivision 1. [WHEN OWED; RATE.] (a) When the judgment is
for the recovery of money, including a judgment for the recovery
of taxes, interest from the time of the verdict or report until
judgment is finally entered shall be computed by the court
administrator as provided in clause (c) and added to the
judgment.
(b) Except as otherwise provided by contract or allowed by
law, preverdict or prereport interest on pecuniary damages shall
be computed as provided in clause (c) from the time of the
commencement of the action, or the time of a written settlement
demand, whichever occurs first, except as provided herein. The
action must be commenced within 60 days of a written settlement
demand for interest to begin to accrue from the time of the
demand. If either party serves a written offer of settlement,
the other party may serve a written acceptance or a written
counteroffer within 60 days. After that time interest on the
judgment shall be calculated by the judge in the following
manner. The prevailing party shall receive interest on any
judgment from the time the action was commenced or a written
settlement demand was made, or as to special damages from the
time when special damages were incurred, if later, until the
time of verdict or report only if the amount of its offer is
closer to the judgment than the amount of the opposing party's
offer. If the amount of the losing party's offer was closer to
the judgment than the prevailing party's offer, the prevailing
party shall receive interest only on the amount of the
settlement offer or the judgment, whichever is less, and only
from the time the action was commenced or a written settlement
demand was made, or as to special damages from when the special
damages were incurred, if later, until the time the settlement
offer was made. Subsequent offers and counteroffers supersede
the legal effect of earlier offers and counteroffers. For the
purposes of clause (3), the amount of settlement offer must be
allocated between past and future damages in the same proportion
as determined by the trier of fact. Except as otherwise
provided by contract or allowed by law, preverdict or prereport
interest shall not be awarded on the following:
(1) judgments, awards, or benefits in workers' compensation
cases, but not including third-party actions;
(2) judgments, decrees, or orders in dissolution,
annulment, or legal separation actions;
(3) judgments for future damages;
(4) (3) punitive damages, fines, or other damages that are
noncompensatory in nature;
(5) (4) judgments not in excess of the amount specified in
section 487.30; and
(6) (5) that portion of any verdict or report which is
founded upon interest, or costs, disbursements, attorney fees,
or other similar items added by the court.
(c) The interest shall be computed as simple interest per
annum. The rate of interest shall be based on the secondary
market yield of one year United States treasury bills,
calculated on a bank discount basis as provided in this section.
On or before the 20th day of December of each year the
state court administrator shall determine the rate from the
secondary market yield on one year United States treasury bills
for the most recent calendar month, reported on a monthly basis
in the latest statistical release of the board of governors of
the federal reserve system. This yield, rounded to the nearest
one percent, shall be the annual interest rate during the
succeeding calendar year. The state court administrator shall
communicate the interest rates to the court administrators and
sheriffs for use in computing the interest on verdicts.
When a judgment creditor, or the judgment creditor's
attorney or agent, has received a payment after entry of
judgment, whether the payment is made voluntarily by or on
behalf of the judgment debtor, or is collected by legal process
other than execution levy where a proper return has been filed
with the court administrator, the judgment creditor, or the
judgment creditor's attorney, before applying to the court
administrator for an execution shall file with the court
administrator an affidavit of partial satisfaction. The
affidavit must state the dates and amounts of payments made upon
the judgment after the most recent affidavit of partial
satisfaction filed, if any; the part of each payment that is
applied to taxable disbursements and to accrued interest and to
the unpaid principal balance of the judgment; and the accrued,
but the unpaid interest owing, if any, after application of each
payment.
Presented to the governor May 29, 1991
Signed by the governor June 1, 1991, 3:29 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes