HF 1247

as introduced - 80th Legislature (1997 - 1998) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act
  1.2             relating to family law; child support modification; 
  1.3             permitting retroactive modification of child support 
  1.4             in additional circumstances; amending Minnesota 
  1.5             Statutes 1996, section 518.64, subdivision 2. 
  1.6   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.7      Section 1.  Minnesota Statutes 1996, section 518.64, 
  1.8   subdivision 2, is amended to read: 
  1.9      Subd. 2.  [MODIFICATION.] (a) The terms of an order 
  1.10  respecting maintenance or support may be modified upon a showing 
  1.11  of one or more of the following:  (1) substantially increased or 
  1.12  decreased earnings of a party; (2) substantially increased or 
  1.13  decreased need of a party or the child or children that are the 
  1.14  subject of these proceedings; (3) receipt of assistance under 
  1.15  sections 256.72 to 256.87 or 256B.01 to 256B.40; (4) a change in 
  1.16  the cost of living for either party as measured by the federal 
  1.17  bureau of statistics, any of which makes the terms unreasonable 
  1.18  and unfair; (5) extraordinary medical expenses of the child not 
  1.19  provided for under section 518.171; or (6) the addition of 
  1.20  work-related or education-related child care expenses of the 
  1.21  obligee or a substantial increase or decrease in existing 
  1.22  work-related or education-related child care expenses.  
  1.23     It is presumed that there has been a substantial change in 
  1.24  circumstances under clause (1), (2), or (4) and the terms of a 
  1.25  current support order shall be rebuttably presumed to be 
  2.1   unreasonable and unfair if the application of the child support 
  2.2   guidelines in section 518.551, subdivision 5, to the current 
  2.3   circumstances of the parties results in a calculated court order 
  2.4   that is at least 20 percent and at least $50 per month higher or 
  2.5   lower than the current support order.  
  2.6      (b) On a motion for modification of maintenance, including 
  2.7   a motion for the extension of the duration of a maintenance 
  2.8   award, the court shall apply, in addition to all other relevant 
  2.9   factors, the factors for an award of maintenance under section 
  2.10  518.552 that exist at the time of the motion.  On a motion for 
  2.11  modification of support, the court:  
  2.12     (1) shall apply section 518.551, subdivision 5, and shall 
  2.13  not consider the financial circumstances of each party's spouse, 
  2.14  if any; and 
  2.15     (2) shall not consider compensation received by a party for 
  2.16  employment in excess of a 40-hour work week, provided that the 
  2.17  party demonstrates, and the court finds, that: 
  2.18     (i) the excess employment began after entry of the existing 
  2.19  support order; 
  2.20     (ii) the excess employment is voluntary and not a condition 
  2.21  of employment; 
  2.22     (iii) the excess employment is in the nature of additional, 
  2.23  part-time employment, or overtime employment compensable by the 
  2.24  hour or fractions of an hour; 
  2.25     (iv) the party's compensation structure has not been 
  2.26  changed for the purpose of affecting a support or maintenance 
  2.27  obligation; 
  2.28     (v) in the case of an obligor, current child support 
  2.29  payments are at least equal to the guidelines amount based on 
  2.30  income not excluded under this clause; and 
  2.31     (vi) in the case of an obligor who is in arrears in child 
  2.32  support payments to the obligee, any net income from excess 
  2.33  employment must be used to pay the arrearages until the 
  2.34  arrearages are paid in full. 
  2.35     (c) A modification of support or maintenance may be made 
  2.36  retroactive only with respect to any period during which the 
  3.1   petitioning party has pending a motion for modification but only 
  3.2   from the date of service of notice of the motion on the 
  3.3   responding party and on the public authority if public 
  3.4   assistance is being furnished or the county attorney is the 
  3.5   attorney of record.  However, modification may be applied to an 
  3.6   earlier period if the court makes express findings that: 
  3.7      (1)  the party seeking modification was precluded from 
  3.8   serving a motion by reason of a significant physical or mental 
  3.9   disability, a material misrepresentation of another party, or 
  3.10  fraud upon the court and that the party seeking modification, 
  3.11  when no longer precluded, promptly served a motion; 
  3.12     (2) the party seeking modification was a recipient of 
  3.13  federal Supplemental Security Income (SSI), Title II Older 
  3.14  Americans, Survivor's Disability Insurance (OASDI), other 
  3.15  disability benefits, or public assistance based upon need as 
  3.16  defined by subdivision 6 during the period for which retroactive 
  3.17  modification is sought; or 
  3.18     (3) the order for which the party seeks amendment was 
  3.19  entered by default, the party shows good cause for not 
  3.20  appearing, and the record contains no factual evidence or 
  3.21  clearly erroneous evidence regarding the individual obligor's 
  3.22  ability to pay.  
  3.23     The court may provide that a reduction in the amount 
  3.24  allocated for child care expenses based on a substantial 
  3.25  decrease in the expenses is effective as of the date the 
  3.26  expenses decreased. 
  3.27     (d) Except for an award of the right of occupancy of the 
  3.28  homestead, provided in section 518.63, all divisions of real and 
  3.29  personal property provided by section 518.58 shall be final, and 
  3.30  may be revoked or modified only where the court finds the 
  3.31  existence of conditions that justify reopening a judgment under 
  3.32  the laws of this state, including motions under section 518.145, 
  3.33  subdivision 2.  The court may impose a lien or charge on the 
  3.34  divided property at any time while the property, or subsequently 
  3.35  acquired property, is owned by the parties or either of them, 
  3.36  for the payment of maintenance or support money, or may 
  4.1   sequester the property as is provided by section 518.24. 
  4.2      (e) The court need not hold an evidentiary hearing on a 
  4.3   motion for modification of maintenance or support. 
  4.4      (f) Section 518.14 shall govern the award of attorney fees 
  4.5   for motions brought under this subdivision.