HF 518

1st Engrossment - 89th Legislature (2015 - 2016) Posted on 03/30/2016 10:31am

A bill for an act
relating to family law; clarifying parenting time rebuttable presumption;
modifying remedies following denial of court-ordered parenting time or other
agreements; allowing post-decree modification of maintenance; requiring
disclosure of income information; allowing an alternate effective date for
modification of child support; amending Minnesota Statutes 2014, sections
518.175, subdivisions 1, 6; 518.552, subdivision 5; 518A.28; 518A.39,
subdivision 2.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2014, section 518.175, subdivision 1, is amended to read:

Subdivision 1.

General.

(a) In all proceedings for dissolution or legal separation,
subsequent to the commencement of the proceeding and continuing thereafter during
the minority of the child, the court shall, upon the request of either parent, grant such
parenting time on behalf of the child and a parent as will enable the child and the parent to
maintain a child to parent relationship that will be in the best interests of the child. The
court, when issuing a parenting time order, may reserve a determination as to the future
establishment or expansion of a parent's parenting time. In that event, the best interest
standard set forth in subdivision 5, paragraph (a), shall be applied to a subsequent motion
to establish or expand parenting time.

(b) If the court finds, after a hearing, that parenting time with a parent is likely
to endanger the child's physical or emotional health or impair the child's emotional
development, the court shall restrict parenting time with that parent as to time, place,
duration, or supervision and may deny parenting time entirely, as the circumstances
warrant. The court shall consider the age of the child and the child's relationship with the
parent prior to the commencement of the proceeding.

(c) A parent's failure to pay support because of the parent's inability to do so shall
not be sufficient cause for denial of parenting time.

(d) The court may provide that a law enforcement officer or other appropriate person
will accompany a party seeking to enforce or comply with parenting time.

(e) Upon request of either party, to the extent practicable an order for parenting
time must include a specific schedule for parenting time, including the frequency and
duration of visitation and visitation during holidays and vacations, unless parenting time
is restricted, denied, or reserved.

(f) The court administrator shall provide a form for a pro se motion regarding
parenting time disputes, which includes provisions for indicating the relief requested, an
affidavit in which the party may state the facts of the dispute, and a brief description of
the parenting time expeditor process under section 518.1751. The form may not include
a request for a change of custody. The court shall provide instructions on serving and
filing the motion.

(g) In the absence of other evidence, there is a rebuttable presumption that a parent
is entitled to receive deleted text begin at least deleted text end new text begin a minimum of new text end 25 percent of the parenting time for the child.
For purposes of this paragraph, the percentage of parenting time may be determined
by calculating the number of overnights that a child spends with a parent or by using a
method other than overnights if the parent has significant time periods on separate days
when the child is in the parent's physical custody but does not stay overnight. The court
may consider the age of the child in determining whether a child is with a parent for a
significant period of time.

Sec. 2.

Minnesota Statutes 2014, section 518.175, subdivision 6, is amended to read:

Subd. 6.

Remedies.

new text begin (a) The court may provide compensatory parenting time when
a substantial amount of court-ordered parenting time has been made unavailable to one
parent unless providing the compensatory parenting time is not consistent with the child's
best interests.
new text end

deleted text begin (a) deleted text end new text begin (b) new text end The court deleted text begin may deleted text end new text begin shall new text end provide for one deleted text begin or more deleted text end of the deleted text begin following deleted text end remedies new text begin as
provided under this subdivision new text end for new text begin (1) a repeated and intentional new text end denial of or interference
with court-ordered parenting time deleted text begin as provided under this subdivision. All parenting time
orders must include notice of the provisions of this subdivision. deleted text end new text begin , or (2) a repeated and
intentional failure to comply with a binding agreement or decision under section 518.1751.
new text end

deleted text begin (b) deleted text end new text begin (c) new text end If the court finds that a person has been deprived of court-ordered parenting
time new text begin under paragraph (b) new text end , the court shall order the parent who has interfered to allow
compensatory parenting time to the other parent deleted text begin or the court shall make specific findings
as to why a request for compensatory parenting time is denied deleted text end . deleted text begin If deleted text end new text begin When new text end compensatory
parenting time is awarded, additional parenting time must be:

(1) at least of the same type and duration as the deprived parenting time and, at
the discretion of the court, may be in excess of or of a different type than the deprived
parenting time;

(2) taken within one year after the deprived parenting time; and

(3) at a time acceptable to the parent deprived of parenting time.

deleted text begin (c) deleted text end new text begin (d) new text end If the court finds that a party has deleted text begin wrongfully failed to comply with a parenting
time order deleted text end new text begin repeatedly and intentionally denied or interfered with court-ordered parenting
time new text end or new text begin failed to comply with new text end a binding agreement or decision under section 518.1751, the
court may new text begin in addition to awarding compensatory parenting time under paragraph (c) new text end :

(1) impose a civil penalty of up to $500 on the party;

(2) require the party to post a bond with the court for a specified period of time
to secure the party's compliance;

(3) award reasonable attorney's fees and costs;

(4) require the party who violated the parenting time order or binding agreement or
decision of the parenting time expeditor to reimburse the other party for costs incurred as
a result of the violation of the order or agreement or decision; or

(5) award any other remedy that the court finds to be in the best interests of the
children involved.

A civil penalty imposed under this paragraph must be deposited in the county
general fund and must be used to fund the costs of a parenting time expeditor program
in a county with this program. In other counties, the civil penalty must be deposited
in the state general fund.

new text begin (e) The court shall provide one or more of the remedies available in paragraph (d),
clauses (1) to (5), if one of the following occurs:
new text end

new text begin (1) the court finds that a party has repeatedly and intentionally denied or interfered
with court-ordered parenting time after a previous finding that the party repeatedly and
intentionally denied or interfered with court-ordered parenting time; or
new text end

new text begin (2) the court finds that a party has failed to comply with a binding agreement or
decision under section 518.1751 after a previous finding that the party failed to comply
with a binding agreement or decision under section 518.1751.
new text end

new text begin (f) If the court makes written findings that any denial of or interference with
court-ordered parenting time or the failure to comply with a binding agreement or decision
under section 518.1751 was necessary to protect a child's physical or emotional health, the
court is not required to comply with paragraphs (b) to (e).
new text end

deleted text begin (d) deleted text end new text begin (g) new text end If the court finds that a party has been denied parenting time and has incurred
expenses in connection with the denied parenting time, the court may require the party
who denied parenting time to post a bond in favor of the other party in the amount of
prepaid expenses associated with upcoming planned parenting time.

deleted text begin (e) deleted text end new text begin (h) new text end Proof of an unwarranted denial of or interference with duly established
parenting time may constitute contempt of court and may be sufficient cause for reversal
of custody.

new text begin (i) All parenting time orders must include notice of the provisions of this subdivision.
new text end

Sec. 3.

Minnesota Statutes 2014, section 518.552, subdivision 5, is amended to read:

Subd. 5.

Private agreements.

The parties may expressly preclude or limit
modification of maintenance through a stipulation, if the court makes specific findings
that the stipulation is fair and equitable, is supported by consideration described in the
findings, and that full disclosure of each party's financial circumstances has occurred. The
stipulation must be made a part of the judgment and decree new text begin or a post-decree stipulated
order. The parties may restore the court's authority or jurisdiction to award or modify
maintenance through a binding stipulation new text end .

Sec. 4.

Minnesota Statutes 2014, section 518A.28, is amended to read:

518A.28 PROVIDING INCOME INFORMATION.

(a) In any case where the parties have joint children for which a child support
order must be determined, the parties shall serve and file with their initial pleadings
or motion documents, a financial affidavit, disclosing all sources of gross income for
purposes of section 518A.29. The financial affidavit shall include relevant supporting
documentation necessary to calculate the parental income for child support under section
518A.26, subdivision 15, including, but not limited to, pay stubs for the most recent three
months, employer statements, or statements of receipts and expenses if self-employed.
Documentation of earnings and income also include relevant copies of each parent's
most recent federal tax returns, including W-2 forms, 1099 forms, unemployment benefit
statements, workers' compensation statements, and all other documents evidencing
earnings or income as received that provide verification for the financial affidavit. The
state court administrator shall prepare a financial affidavit form that may be used by
the parties for disclosing information under this section. The parties may provide the
information required under this section in a substantially similar affidavit form.

(b) In addition to the requirements of paragraph (a), at any time after an action
seeking child support has been commenced or when a child support order is in effect, a
party or the public authority may require the other party to give them a copy of new text begin :
new text end

new text begin (1) new text end the party's deleted text begin most recent deleted text end new text begin complete new text end federal tax returns new text begin for the preceding year new text end that
were filed with the Internal Revenue Service new text begin ; or
new text end

new text begin (2) if the party's federal tax returns have not been filed for that year, one or more of
the following:
new text end

new text begin (i) the party's 1099 form;
new text end

new text begin (ii) the party's W-2 form; or
new text end

new text begin (iii) the party's K-1 form new text end .

The party shall provide a copy of the tax returns new text begin or forms new text end within 30 days of receipt of the
request unless the request is not made in good faith. A request under this paragraph may
not be made more than once every two years, in the absence of good cause.

(c) If a parent under the jurisdiction of the court does not serve and file the financial
affidavit with the parent's initial pleading or motion documents, the court shall set income
for that parent based on credible evidence before the court or in accordance with section
518A.32. Credible evidence may include documentation of current or recent income,
testimony of the other parent concerning recent earnings and income levels, and the
parent's wage reports filed with the Minnesota Department of Employment and Economic
Development under section 268.044. The court may consider credible evidence from one
party that the financial affidavit submitted by the other party is false or inaccurate.

(d) If the court determines that a party does not have access to documents that are
required to be disclosed under this section, the court may consider the testimony of that
party as credible evidence of that party's income.

new text begin (e) If the court finds that a party has violated a court order or statute requiring the
party to disclose income or employment information and any changes to that information,
the court may issue an order requiring compensation and cost and reasonable attorney
fees to the party who was wrongfully deprived of the information, but in no event later
than three years from the date the information should have been provided. A party who
brings a meritless motion for such relief may be ordered to pay costs and reasonable
attorney fees to the other party.
new text end

Sec. 5.

Minnesota Statutes 2014, section 518A.39, subdivision 2, is amended to read:

Subd. 2.

Modification.

(a) The terms of an order respecting maintenance or support
may be modified upon a showing of one or more of the following, any of which makes
the terms unreasonable and unfair: (1) substantially increased or decreased gross income
of an obligor or obligee; (2) substantially increased or decreased need of an obligor or
obligee or the child or children that are the subject of these proceedings; (3) receipt of
assistance under the AFDC program formerly codified under sections 256.72 to 256.87
or 256B.01 to 256B.40, or chapter 256J or 256K; (4) a change in the cost of living for
either party as measured by the Federal Bureau of Labor Statistics; (5) extraordinary
medical expenses of the child not provided for under section 518A.41; (6) a change in
the availability of appropriate health care coverage or a substantial increase or decrease
in health care coverage costs; (7) the addition of work-related or education-related child
care expenses of the obligee or a substantial increase or decrease in existing work-related
or education-related child care expenses; or (8) upon the emancipation of the child, as
provided in subdivision 5.

(b) It is presumed that there has been a substantial change in circumstances under
paragraph (a) and the terms of a current support order shall be rebuttably presumed to be
unreasonable and unfair if:

(1) the application of the child support guidelines in section 518A.35, to the current
circumstances of the parties results in a calculated court order that is at least 20 percent
and at least $75 per month higher or lower than the current support order or, if the current
support order is less than $75, it results in a calculated court order that is at least 20
percent per month higher or lower;

(2) the medical support provisions of the order established under section 518A.41
are not enforceable by the public authority or the obligee;

(3) health coverage ordered under section 518A.41 is not available to the child for
whom the order is established by the parent ordered to provide;

(4) the existing support obligation is in the form of a statement of percentage and not
a specific dollar amount;

(5) the gross income of an obligor or obligee has decreased by at least 20 percent
through no fault or choice of the party; or

(6) a deviation was granted based on the factor in section 518A.43, subdivision 1,
clause (4), and the child no longer resides in a foreign country or the factor is otherwise no
longer applicable.

(c) A child support order is not presumptively modifiable solely because an obligor
or obligee becomes responsible for the support of an additional nonjoint child, which is
born after an existing order. Section 518A.33 shall be considered if other grounds are
alleged which allow a modification of support.

(d) 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 apply section 518A.35, 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.

(e) A modification of support or maintenance, including interest that accrued
pursuant to section 548.091, 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 and on the public
authority if public assistance is being furnished or the county attorney is the attorney of
record new text begin , unless the court adopts an alternative effective date under paragraph (l). The
court's adoption of an alternative effective date under paragraph (l) shall not be considered
a retroactive modification of maintenance or support new text end .

(f) 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 518A.71.

(g) The court need not hold an evidentiary hearing on a motion for modification of
maintenance or support.

(h) Sections 518.14 and 518A.735 shall govern the award of attorney fees for
motions brought under this subdivision.

(i) Except as expressly provided, an enactment, amendment, or repeal of law does
not constitute a substantial change in the circumstances for purposes of modifying a
child support order.

(j) MS 2006 [Expired]

(k) On the first modification under the income shares method of calculation, the
modification of basic support may be limited if the amount of the full variance would
create hardship for either the obligor or the obligee.

new text begin (l) The court may select an alternative effective date for a maintenance or support
order if the parties enter into a binding agreement for an alternative effective date.
new text end