Opinion
No. C7-99-137.
Filed July 13, 1999.
Appeal from the District Court, Washington County, File No. F8911226.
David K. Meier, (for respondent)
Lisa M. Amundson, Brent G. Eilefson, Dudley Smith, P.A., (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
This appeal arises from the modification of a 1991 dissolution of an 18-year marriage. On appeal, Truman Frank Kellie argues the trial court erred in amending its prior judgment and granting Betty Jean Kellie's motion for child support arrears in the amount of $24,808.56. Kellie also moves to strike portions of his former spouse's brief. We affirm and deny the motion to strike.
DECISION I.
Modification of support obligations is within the trial court's discretion, and we will not reverse modification decisions absent an abuse of that discretion. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). We will find an abuse of discretion only when the trial court reaches a clearly erroneous conclusion that is against logic and facts in the record. Id.
Kellie argues the trial court improperly amended its prior judgment because the hearing for the motion for amended findings was untimely. See Minn.R.Civ.P. 59.03 (requiring notice of motion be served within 15 days of order and motion be heard 30 days after order), 52.02 (stating trial court may amend findings in response to timely motion). But the 30-day limit for a hearing date under Minn.R.Civ.P. 59.03 is not absolute, and an extension may be made for good cause. Celis v. State Farm Mut. Auto. Ins. Co., 580 N.W.2d 64, 65 (Minn.App. 1998); see Woodrow v. Tobler, 269 N.W.2d 910, 914 (Minn. 1978) (noting that, while written order extending 30-day time limit is preferable, form for extension for cause is not specified by Rule 59.03).
The record shows: (1) on June 10, 1998, the trial court filed an order granting Kellie's motion to reduce spousal maintenance, and denying the motions of Kellie's former spouse to increase child support and find Kellie in child support arrears; (2) two days later, Kellie's former spouse served Kellie's counsel with a notice of filing of the order; (3) on June 26, 1998, Kellie's former spouse served and filed her motion for amended findings asking the court administrator to set a hearing date within the required 30-day period; (4) because the trial court judge retired on July 1, 1998, the court administrator reassigned the parties' case to another judge and, in response to the request of Kellie's former spouse for the first possible hearing date, set the motion hearing for August 7, 1998; and (5) because of conflicts with the schedule of Kellie's counsel, the parties agreed to reschedule the hearing date for September 25, 1998.
Given these facts, the trial court properly heard the motion for amended findings after the 30-day time period expired. See Woodrow, 269 N.W.2d at 914 (stating "[i]t is clear that the unavailability of the trial judge at the time of the motion constitutes `good cause' for extending the time"); Texas Commerce Bank v. Olson, 416 N.W.2d 456, 462-63 (Minn.App. 1987) (holding bank waived any objection to timeliness of hearing date because it indicated hearing date was convenient and did not object to hearing date when it was scheduled). Moreover, because the motion challenged specific findings, the trial court had jurisdiction to hear this motion. See Cox v. Selover, 165 Minn. 50, 52, 205 N.W. 691, 692 (1925) (recognizing trial court may review verdict on ground that it is not supported by evidence); Lewis v. Lewis, 572 N.W.2d 313, 315 (Minn.App. 1997) (noting trial court may amend its order to review its own exercise of discretion and identify an alleged defect in the challenged findings), review denied (Minn. Feb. 19, 1988). Under these circumstances, the trial court did not abuse its discretion in considering the motion for amended findings.
II.
Even if the trial court properly considered the motion for amended findings, Kellie argues it abused its discretion in finding the parties' extrajudicial agreements unenforceable and basing arrears on Kellie's original child support obligation. But any private modification of a dissolution order without subsequent judicial approval is not valid. Tell v. Tell, 383 N.W.2d 678, 681 (Minn. 1986); see Diedrich v. Diedrich, 424 N.W.2d 580, 583 (Minn.App. 1988) (holding that, because best interests of child are more important than parties' wishes, unconfirmed post-dissolution agreements are not followed); Vitalis v. Vitalis, 363 N.W.2d 57, 60 (Minn.App. 1985) (stating "[s]elf-help is not favored"). Although both parties acknowledge they entered into an extrajudicial agreement to reduce Kellie's child support payments, they never memorialized this agreement or brought it before the trial court. Given this fact, the trial court properly concluded the parties' agreement was unenforceable. Although Kellie argues any arrears should be offset by expenses he paid, Kellie's previously paid expenses constituted gifts to his children and the trial court properly refused to offset arrears by these costs. See Barnier v. Wells, 476 N.W.2d 795, 797 (Minn.App. 1991) (noting gifts only considered in calculating support if regularly received from dependable source). Under these circumstances, we affirm the trial court's order and determination of arrears. Because we did not consider the facts cited by Kellie in his motion to strike in reaching our decision, we deny the motion to strike.