author: HALBROOKS, Judge.

text:
    EDINA DEVELOPMENT CORPORATION, a/k/a Edina Development, Inc., Appellant, v. Larry HURRLE, a/k/a Lawrence C. Hurrle, et al., Respondents.
    No. A03-32.
    Court of Appeals of Minnesota.
    Oct. 21, 2003.

      Larry M. Wertheim, Kennedy & Graven, Chtd., Minneapolis, MN; and John J. Berglund, Scott C. Baumgartner, Berg-lund & Baumgartner, Ltd., Anoka, MN, for appellant.
    Gary A. Van Cleve, Christopher J. Deike, Larkin, Hoffman, Daly & Lindgren, Ltd., Bloomington, MN, for respondents.
    Considered and decided by KLAPHAKE, Presiding Judge, PETERSON, Judge, and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

On appeal from summary judgment, appellant argues that the district court erred in holding that it did not have the right to exercise its option under an option agreement because appellant did not fulfill all of the conditions of a separate agreement to purchase 162 acres of land. Because we conclude that the district court did not err, we affirm.

FACTS

Respondents Larry Hurrle, Carol Hurrle, and Timothy Hurrle are family farmers. They own and rent farmland in Sherburne, Stearns, and Wright counties where they conduct business under the name Hurrle Farms. Hurrle Farms is primarily a cash-crop operation.

In 1996, Hurrle Farms planted over 5,000 acres of crops, including over 2,000 acres of corn. Later that year, herbicide was over-applied to parts of respondents’ land, destroying much of respondents’ corn crop and resulting in a major reduction in yield. Respondents never recovered from the financial impact of the lost crops, and in 1998, they filed for chapter 11 bankruptcy relief. Respondents were forced to enter into various amendment and extension agreements with their major creditor, Ag Services of America, Inc. Part of the agreement required respondents to execute and deliver into escrow warranty deeds for certain pieces of property and provided that Ag Services would be allowed to record the deeds if certain specified defaults occurred.

In an attempt to relieve some of the growing financial pressure, respondents decided to sell portions of their farmland. On October 13, 1999, respondents agreed to sell some parcels of land located in Sherburne County to appellant Edina Development Corporation. The parties entered into three separate agreements. The first was a purchase agreement for approximately 438 acres (438-acre agreement); the second was a purchase agreement for approximately 162 acres (162-acre agreement); and the third was an exclusive-option agreement (option agreement) that gave appellant the option to purchase an additional 914 acres. The purchase price was $10,000 per acre under all three agreements.

The agreements were subject to the approval of Ag Services. In approving the agreements between respondents and appellant, Ag Services required respondents to “take prompt action to enforce all remedies available” under the purchase agreements and the option agreement. The dates for the debt payments from respondents to Ag Services were designed to correspond with the dates for appellant’s payments to respondents under the two purchase agreements.

The option agreement gave appellant the option to purchase an additional 914 acres if written notice of its election of purchase was provided to respondents by-May 15, 2002. The option agreement included the following language, which is of significance in resolving the primary issue on appeal: “Notwithstanding anything else apparently to the contrary in this agreement, buyer may exercise this option only if it is not in default under the purchase agreement with owner of even date herewith referenced above and has fully performed in accordance with its terms.”

Under the terms of the 162-acre agreement, appellant was to pay respondents $1,620,000 on the closing date, December 31, 2001. But the closing did not occur. On January 10, 2002, respondents served appellant with a notice of cancellation of the 162-acre agreement as required by Mmn.Stat. § 559.21, subd. 4 (2002), and pursuant to their agreement with Ag Services. By letter dated January 17, 2002, appellant acknowledged that it did not have the resources to close on the 162-acre agreement on time. Appellant stated in the letter that it still wanted to purchase the 162 acres pursuant to the terms of the 162-acre agreement, but at a later closing date. Because appellant failed to close on the 162-acre agreement, respondents were unable to make their debt payment to Ag Services.

On February 11, 2002, the day before the 162-acre agreement was to be terminated pursuant to the notice of cancellation, appellant filed a complaint asking the court to declare that appellant was not in default under the terms of the 162-acre agreement. Appellant also moved for a temporary restraining order to prevent cancellation of the 162-acre agreement. Respondents were not served with the complaint or the motion for a temporary restraining order. The court granted appellant’s ex parte motion for a temporary restraining order pending resolution of appellant’s motion for a temporary injunction.

On May 8, 2002, the parties entered into a stipulation dissolving the temporary restraining order and allowing appellant to close on the 162-acre agreement. The stipulation, among other conditions, set a closing date of May 14, 2002 and required appellant to pay respondents (1) $5,000 in attorney fees, (2) additional interest due to respondents’ inability to make the $2,000,000 payment to Ag Services, (3) $1,620,000 for the 162-acre parcel as set forth in the 162-acre purchase agreement, and (4) $387,100 for the still-unpaid portion of the 438-acre agreement. The closing on the 162-acre agreement took place on May 14, 2002.

In a letter dated May 14, 2002, appellant notified respondents of its election to exercise its option to purchase an additional 914 acres of land from respondents under the option agreement. Respondents rejected appellant’s exercise under the option agreement based on appellant’s failure to fully perform the 162-acre agreement in accordance with its terms.

On July 31, 2002, appellant filed a complaint asserting breach of contract and seeking specific performance of the option agreement or damages. Respondents moved for summary judgment. The district court granted respondents’ motion for summary judgment, finding that because appellant failed to fully perform the 162-acre agreement in accordance with its terms, it did not have the right to exercise its option under the option agreement. This appeal follows.

ISSUES

I. Did the district court err in holding that appellant did not have the right to exercise its option under the option agreement because it did not fulfill a condition of the agreement that required full performance of the 162-acre agreement in accordance with its terms?

II. Did the parties’ May 8, 2002 stipulation modify the closing date of the 162-acre agreement from December 31, 2001 to May 14, 2002 so as to result in appellant’s full performance of the 162-acre agreement in accordance with its terms?

III. Did the district court err in holding that respondents did not waive their right to claim that appellant did not fully perform the 162-acre agreement in accordance with its terms when they agreed to close on May 14, 2002?

ANALYSIS

I.

Appellant argues that the district court erred in holding that appellant did not have the right to exercise its option under the option agreement because it did not fulfill a condition of the option agreement that required appellant to perform the 162-acre agreement in accordance with its terms. On an appeal from summary judgment, we ask whether there are any genuine issues of material fact and whether the district court erred in its application of the law. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997). A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, demonstrate that there are no genuine issues of material fact and that either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. On appeal, we must view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). Both parties essentially concede that there are no genuine issues of material fact and that summary judgment is appropriate in this case.

Thus, the only issue is whether the district court erred as a matter of law in its interpretation of the option agreement. Generally, interpretation of the terms of a contract is a question of law that this court reviews de novo. Art Goebel, Inc. v. N. Suburban Agencies, Inc., 567 N.W.2d 511, 515 (Minn.1997). When interpreting a contract, its language is to be given its plain and ordinary meaning. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 394 (Minn.1998). We interpret a contract’s terms in the context of the entire contract, and we interpret a contract to give meaning to all of its provisions. Id. “An option [contract] must be construed strictly in favor of the maker and must be accepted according to its terms.” Abrahamson v. Abrahamson, 613 N.W.2d 418, 423 (Minn.App.2000).

It is undisputed that appellant exercised its option under the option agreement in a timely manner. It is also undisputed that the option agreement contains a condition precedent that allows appellant to exercise the option “only if’ appellant has “fully performed” the 162-acre agreement “in accordance with its terms.” Neither party contends that the language of the condition precedent is ambiguous, but each party asserts a different interpretation of the language. Appellant contends that, when it closed on the 162-acre agreement before respondents completed statutory cancellation of the agreement under Minn.Stat. § 559.21 (2002), it fully performed the agreement in accordance with its terms and, thus, fulfilled the condition precedent in the option agreement. In contrast, respondents contend that, when appellant did not close on the 162-acre agreement on December 31, 2001, as specifically required by the purchase agreement, it failed to fully perform the 162-acre agreement in accordance with its terms and, thus, failed to fulfill the condition precedent in the option agreement. The central issue on appeal is whether performance of the 162-acre agreement after December 31, 2001, but before respondents could lawfully cancel the agreement, constituted full performance.

Real estate purchase agreements are unique because they are subject to the provisions of Minn.Stat. § 559.21. Under Minn.Stat. § 559.21, subd. 2a, if a default occurs in the conditions of a contract for the conveyance of real estate, the seller has a right to cancel the contract. But in order to terminate the contract, the seller must serve the buyer with a notice of cancellation stating “the conditions in which default has been made” and that, in the case of a purchase agreement, the contract will be terminated in 30 days unless prior to the termination date, the buyer complies with the conditions of default, makes all payments due and owing under the contract, pays the costs of notice, and pays the required amount of attorney fees. Minn.Stat. § 559.21, subds. 2a, 4(a). Courts have the authority, before the termination date and subject to the requirements of Minn. R. Civ. P. 65, to enter an order temporarily restraining the termination of the contract. Minn.Stat. § 559.211, subd. 1 (2002). If a temporary restraining order is granted, the buyer has 15 days from the date the temporary restraining order is dissolved before the contract is terminated. Id If the buyer complies with the requirements of the notice of cancellation before the termination date, the contract is reinstated. If not, the contract is cancelled. Minn.Stat. § 559.21, subd. 4(c), (d) (2002). The purpose of these statutory provisions allowing for termination and reinstatement is to provide buyers with notice of impending cancellation and to avoid the harsh result of forfeiture by allowing buyers a reasonable time to remedy their default. Thomey v. Stewart, 391 N.W.2d 533, 535 (Minn.App.1986).

Relying on Larkin v. Glens Falls Ins. Co., 80 Minn. 527, 83 N.W. 409 (1900), appellant argues that the provisions of Minn.Stat. § 559.21 became terms of the 162-acre agreement, allowing appellant to fully perform the purchase agreement in accordance with its terms as long as it closed on the agreement before it was cancelled. We disagree. Larkin states, “[WJhere parties contract upon a subject which is surrounded by statutory limitations and requirements, they are presumed to have entered into their engagements with reference to such statute, and the same enters into and becomes a part of the contract.” 80 Minn, at 531, 83 N.W. at 410. But while the provisions of Minn. Stat. § 559.21 inform and are statutorily implied into a contract for the conveyance of real estate, they do not become express terms of the contract.

Here, the 162-acre agreement set a specific closing date of December 31, 2001. When appellant failed to close on December 31, 2001, it was in default under the terms of the agreement. Nevertheless, the provisions of Minn.Stat. § 559.21 allowed appellant to salvage the agreement. Under the statute, before respondents could cancel the agreement as a result of appellant’s default, they were required to provide appellant with notice of cancellation and to give appellant 30 days from the service of the notice of cancellation to meet the conditions for reinstatement. On May 14, 2002, appellant met the reinstatement conditions, which gave it the right under Minn.Stat. § 559.21 to enforce the terms of the 162-acre agreement and to complete the transaction even though it had not fully performed the agreement in accordance with its terms. But while the provisions of Minn.Stat. § 559.21 enabled appellant to enforce the 162-acre agreement (in spite of its terms), appellant did not fully perform the agreement in accordance with its terms. The option agreement required appellant to fully perform the 162-acre agreement in accordance with its terms. Therefore, we conclude that the district court did not err in holding that appellant did not have the right to exercise its option under the option agreement.

II.

Appellant argues that the 162-acre agreement was modified by the parties’ May 8, 2002 stipulation to dissolve the temporary injunction. Under the terms of the stipulation, the parties agreed to a new closing date for the 162-acre agreement of May 14, 2002. Thus, appellant argues, when the 162-acre agreement closed on May 14, 2002, appellant fully performed the 162-acre agreement in accordance with its terms and was entitled to exercise its option under the option agreement.

Appellant did not present this theory to the district court; therefore, it is not properly before this court on appeal. See Thiele, 425 N.W.2d at 582 (stating that this court will generally not consider matters not argued and considered in the district court). Even if we were to consider appellant’s modification theory on its merits, appellant’s argument is not persuasive. The parties’ stipulation set forth the terms of appellant’s exercise of its statutory-reinstatement rights under Minn.Stat. §§ 559.21, .211 (2002). It did not constitute a modification of the parties’ 162-acre agreement.

III.

Finally, appellant contends that respondents waived any claim of breach of the 162-acre agreement caused by appellant’s failure to close on December 31, 2001 when respondents agreed to the later closing date of May 14, 2002. “In order for an action to constitute a waiver, there must be an intentional relinquishment of a known right, and it must clearly be made to appear from the facts disclosed.” Citizens Natl. Bank of Madelia v. Mankato Implement, Inc., 441 N.W.2d 483, 487 (Minn.1989) (quotations omitted). The record here does not support a conclusion that respondents intentionally relinquished a known right. Under Minn.Stat. § 559.211, subd. 1, appellant was allowed to close on the 162-acre agreement before expiration of 15 days from the date of the order dissolving the temporary restraining order. In addition, the stipulation included the following paragraph:

[Respondents] acknowledge that they received a letter from [appellant] dated April 29, 2002, in which [appellant] states that it intends to exercise its option to acquire 914 acres of additional land owned by [respondents]. This ac-knowledgement of receipt of the letter is not intended to make any representation, admission or agreement concerning the legal effect of this letter.

The district court did not err in holding that respondents did not waive their rights under the option agreement.

DECISION

The district court did not err in holding that appellant is not entitled to exercise its option under the option agreement because it did not fully perform the 162-acre agreement in accordance with its terms.

Affirmed.

      . The parties agree that this reference is to the 162-acre agreement.

      . Appellant conceded in the district court that there were no issues of material fact. On appeal, appellant maintains that there are essentially no genuine issues of material fact, but contends that, if and only if, this court rejects all of its theories there may be a genuine issue of material fact as to whether appellant was in default under the 162-acre agreement for failing to close on December 31, 2001. But because appellant did not assert in the district court that there are genuine issues of material fact, the issue is not properly before this court on appeal. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (stating that this court will generally not consider matters not argued and considered in the district court).


source: Caselaw Access Project

author: WILLIS, Judge.

license: Public Domain

text:
    Gerald WICK, petitioner, Respondent, v. Rajeana WICK, n/k/a Rajeana L. Wick-Williams, Respondent, and Victoria L. Ridge, third party respondent, Appellant, Hennepin County Child Support Enforcement, intervenor, Respondent.
    No. A03-74.
    Court of Appeals of Minnesota.
    Oct. 22, 2003.

      Joyce Cundy, Cundy & Paul, LLC, Bloomington, for respondent Gerald Wick.
    Darrin M. Rosha, St. Paul, for respondent Rajeana L. Wick-Williams.
    Suzanne Born, Minneapolis, for appellant.
    Amy Klobuchar, Hennepin County Attorney, Thomas L. Aarestad, Assistant County Attorney, Minneapolis, for respondent Hennepin County Child Support Enforcement.
    Considered and decided by WILLIS, Judge and TOUSSAINT, Chief Judge and SHUMAKER, Judge.
   OPINION

WILLIS, Judge.

Respondent-intervenor attempted to commence a civil action against appellant by serving on her a motion to join her as a party to a post-dissolution-decree proceeding. Appellant moved to dismiss, arguing that the district court lacked personal jurisdiction over her because she had not been served with a summons and complaint. The district court denied appellant’s motion. Because we conclude that respondent-intervenor did not properly invoke the district court’s jurisdiction over appellant, we reverse.

FACTS

Gerald Wick and Rajeana Wick-Williams dissolved their marriage in 1985. The dissolution judgment directed Wick to pay monthly child support for the couple’s four children. Wick stopped making child-support payments in 1989. There have been extensive proceedings since 1989 regarding Wick’s failure to satisfy his child-support obligation, but we will summarize only the most pertinent here.

At the time of the dissolution, Wick, individually or through a corporation in which he had an interest, either owned or was in the process of buying parcels of real estate in St. Louis County on which the corporation operated a hay business. The dissolution judgment awarded both the real estate and the marital homestead to Wick.

In 1988, Wick conveyed all but 5% of his interest in the corporation to his brother, although Wick continued to run the hay business. There was a mortgage on most of the real estate that was awarded to Wick, and the mortgage was foreclosed on at some time before 1992, when appellant Victoria Ridge, Wick’s girlfriend, purchased the real estate at a sheriff’s sale.

At some time before July 1993, respondent Hennepin County Child Support Enforcement (“the county”) intervened to recover from Wick the amount of public assistance that it had provided to Wick-Williams. In motions heard by the district court in July 1993, the county asked the court to (1) increase Wick’s child-support obligation from $169 per month, (2) hold Wick in contempt of court for failure to pay child support, and (3) grant the county a judgment in the amount of the public assistance that it had provided to Wick-Williams. The county appears to have argued that Wick fraudulently conveyed to Ridge the real estate that the dissolution judgment had awarded to him and that he arranged to receive only $400 in gross monthly wages from the corporation so that he could claim that he was unable to pay his monthly child-support obligation. In a February 1994 order, the district court found that the county had not shown either that the arrangement under which Wick received $400 in gross monthly wages was fraudulent or that Ridge’s purchase of the real estate was fraudulent. The district court thus denied the county’s motions to increase Wick’s child-support obligation and for a judgment for the amount of public assistance, though the court concluded that Wick was in contempt of court for his failure to pay his then-existing support obligation.

In July 2001, the district court heard Wick-Williams’s motion to find Wick again in contempt for failure to pay child-support arrears, which by then were more than $50,000. In an August 2001 order, the district court found that (1) Ridge had assumed ownership of the corporation operating as ‘Wick’s Hay,” (2) the marital homestead had been foreclosed on and purchased by Ridge, and (3) Ridge routinely paid all of Wick’s “living expenses and personal needs.” Also, the court found that Wick conveyed the corporation and homestead to Ridge in a “sham transaction” to avoid paying the child-support arrears and that Wick was “the beneficial owner of all property placed in the name of Victoria Ridge.” Accordingly, the court placed a hen on Ridge’s assets in the amount of the child-support arrears.

In December 2001, the county served Ridge by mail with a motion that requested an order joining Ridge “as a party to this action” and requiring Ridge “to take immediate steps to substantially accelerate the repayment of child support arrearages from the assets and income” of the corporation. Also, the motion requested an order vacating an October 1992 reduction of Wick’s child-support obligation, increasing the child-support arrears (if the court vacated the earlier reduction), and granting judgment to Wick-Williams for the child-support arrears “not already reduced to judgment.” The only legal issue discussed in the memorandum of law accompanying the motion was that Wick had committed “a fraud upon the Court” because (1) he claimed in a 1992 proceeding that he had insufficient income to satisfy his child-support obligation and thus persuaded the district court to reduce the obligation and (2) the district court in 2001 had found that he had transferred assets sufficient to satisfy the obligation to Ridge in a “sham transaction.” A district court referee granted the county’s motion and joined Ridge as a “third-party respondent” to the dissolution action and directed that Ridge be served with all motions and pleadings in the case. Wick-Williams then moved the district court for an order “to foreclose on all assets real or personal” owned by Ridge “for the purpose of satisfying support arrearages.”

Ridge moved to dismiss, arguing that joinder was improper and that the court lacked personal jurisdiction over her because she had not been served with a summons and complaint. A district court referee rejected Ridge’s arguments, concluding that “[s]ince this is a post-decree support matter, no Summons and Complaint was required to be filed.” On de novo review, the district court affirmed the referee’s conclusion, noting that Ridge had been served with the motions and pleadings and stating:

It makes no sense to say that in order for the Court to have personal jurisdiction over Ridge, a copy of the divorce summons and complaint needs to be served on Ridge. In Family Court post decree matters are initiated and heard by way of motion.

Ridge appealed the district court’s conclusions on both joinder and personal jurisdiction. Because an order joining a party is not appealable, Hillerns v. Minnesotan Hotel, 271 Minn. 101, 103-04, 135 N.W.2d 63, 65 (1965), this court limited Ridge’s appeal to the denial of her motion to dismiss for lack of personal jurisdiction.

ISSUE

Did the district court err by denying appellant’s motion to dismiss for lack of personal jurisdiction?

ANALYSIS

Whether personal jurisdiction exists is a question of law, which we review de novo. Griffis v. Luban, 646 N.W.2d 527, 531 (Minn.2002), cert. denied, — U.S. -, 123 S.Ct. 1483, 155 L.Ed.2d 225 (2003). Personal jurisdiction has two elements: First, there must be an adequate connection between the defendant and the state, known as a “basis” for the exercise of personal jurisdiction by the district court. See 1 Douglas D. McFarland & William J. Keppel, Minnesota Civil Practice § 721 (3d ed.1999); 16 James Wm. Moore et al., Moore’s Federal Practice § 108.01[2][a] (3d ed.2003) (discussing personal-jurisdiction requirements applicable to both federal and state courts). Second, the plaintiff must invoke the jurisdiction of the district court using a “process” that is consistent with the requirements of due process and that satisfies those portions of the Minnesota Rules of Civil Procedure that govern the commencement of civil actions and the personal service of process. See Moore, supra, § 108.01[2][c] (stating that “even if a proper jurisdictional basis exists, service of process that does not meet due process and statutory requirements will vitiate jurisdiction”); see also Peterson v. Sheran, 635 F.2d 1335, 1337 (8th Cir.1980) (reviewing case commenced in federal court in Minnesota and concluding that court had no jurisdiction over parties not properly served); Sievert v. Selvig, 175 Minn. 597, 598, 222 N.W. 281, 282 (1928) (stating that summons properly served confers jurisdiction on court). Ridge does not argue that the district court lacked a basis for the exercise of jurisdiction. Instead, she maintains that the county did not properly invoke personal jurisdiction over her. Thus, we must decide whether the method that the county used to commence a civil action against Ridge was consistent with due process and conformed to that portion of the Minnesota Rules of Civil Procedure governing the commencement of actions and the service of process. See Doerr v. Warner, 247 Minn. 98, 103, 76 N.W.2d 505, 511 (1956); Moore, supra, § 108.01[2][c],

Due process requires that a defendant receive notice of a civil action and an opportunity to be heard. McFarland & Keppel, supra, § 701, at 293; Moore, supra, § 108.90. This requirement is satisfied if the plaintiff complies with an officially prescribed process for invoking the district court’s jurisdiction that, when followed, is reasonably likely to provide the defendant with actual notice of the action. See Wuchter v. Pizzutti, 276 U.S. 13, 18-19, 48 S.Ct. 259, 260, 72 L.Ed. 446 (1928); Moore, supra, § 108.91. Because the officially prescribed processes in Minnesota for commencing a civil action and the requirements for personal service of process are set forth in the Minnesota Rules of Civil Procedure, the question of whether the county properly invoked the court’s personal jurisdiction turns on whether the county commenced its action against Ridge in accordance with the rules of civil procedure.

Here, the county attempted to invoke the district court’s jurisdiction over Ridge by moving to join her to the proceeding, apparently believing that doing so would satisfy the civil-action requirement. Cf. Minn. R. Civ. P. 20.01 (stating that persons may be joined as defendants if there is asserted against them “any right to relief’ arising from the same transaction or occurrence and if a question of law or fact common to all defendants will arise in the action). Civil actions, however, are commenced by service of a summons on the defendant. Minn. R. Civ. P. 3.01; see Doerr, 247 Minn, at 103, 76 N.W.2d at 511 (stating “[a]s a general rule a civil action is commenced, and the court thereby acquires jurisdiction, when personal service upon the defendant is actually made as prescribed by statute or rule.”). Here, the county did not initially serve Ridge with a summons and complaint. While the district court required that Ridge be “personally served with all Motions and legal pleadings filed in this case” and that her attorney be served by mail “with the same,” and while, on review of that order, the district court found that the motions and legal pleadings had been served on Ridge, for three reasons service of these documents on Ridge cannot commence a civil action against her.

First, the judgment dissolving Wick’s marriage to Wick-Williams was entered in 1985. Therefore the summons and petition culminating in that judgment could not have addressed any of the subsequent events generating the county’s current attempt to pursue Ridge and the assets in her name. Hence, service of that summons and petition on Ridge could not have given her notice of the current claims against her and service on Ridge of that original summons and petition could not have satisfied the due-process prong of the civil-action requirement. Second, there is nothing in the other documents served on Ridge that could have reasonably provided her with notice of the specific cause of action that the county intended to assert against her. The memorandum of law supporting the county’s motion to join Ridge discusses only Wick and his alleged “fraud upon the Court.” Ridge is mentioned in the memorandum only in a reference to the district court’s finding that Wick was the “beneficial owner” of property that had been placed in her name; no legal authority for asserting a civil action against Ridge is cited. Absent notice to Ridge of the cause of action the county sought to assert against her, service of these documents did not satisfy the due-process prong of the civil-action requirement. Third, none of the documents served on Ridge satisfies the portions of Minn. R. Civ. P. 4.01 that require a summons to “state the time within which these rules require the defendant to serve an answer” and to “notify the defendant that if the defendant fails to do so judgment by default will be rendered against the defendant for the relief demanded in the complaint.” Thus, the requirements for asserting personal jurisdiction over Ridge were not satisfied here.

The county argues that the child-support income-withholding provisions of Minn.Stat. ch. 518 provide a basis for personal jurisdiction here. The county asserts that Ridge is Wick’s employer and therefore a “payor of funds,” as defined in MinmStat. § 518.6111, subd. 1(b) (2002). Because Ridge is a payor of funds, the county continues, any income-withholding order issued by the district court is binding on Ridge. See Minn.Stat. § 518.615, subd. 1 (2002). If such orders are binding on Ridge, the county concludes, the district court has personal jurisdiction over her to pursue its current claims against her. We disagree. The county has not established on appeal that even if Ridge is a payor of funds, she has violated an income-withholding order issued by the district court. Moreover, we must interpret these statutes according to their plain meaning, see Minn.Stat. §§ 645.08(1), 645.16 (2002), and there is nothing in the language of either Minn.Stat. § 518.615 or Minn.Stat. § 518.6111 that provides that either statute is a basis for the exercise of personal jurisdiction over a payor of funds for any reason beyond a contempt action under Minn.Stat. § 518.615, subd. 2 (2002). Because this appeal does not concern a contempt action brought against Ridge as a payor of funds, we conclude that neither Minn.Stat. § 518.615 nor Minn.Stat. § 518.6111 provides a basis for the exercise of personal jurisdiction over Ridge.

DECISION

The district court erred by concluding that it could properly exercise personal jurisdiction over Ridge.

Reversed.


text:
    STATE of Minnesota, Respondent, v. Steven Joe BOLLIN, Appellant.
    No. A03-603.
    Court of Appeals of Minnesota.
    Oct. 24, 2003.

      Mike Hatch, Attorney General, St. Paul, MN; and Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka, MN, for respondent.
    John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge, and TOUSSAINT, Chief Judge, and STONEBURNER, Judge.
   OPINION

WILLIS, Judge.

While on probation as an extended-jurisdiction juvenile (EJJ) following a first-degree criminal-sexual-conduct conviction, appellant committed fourth-degree criminal sexual conduct. The district court revoked appellant’s probation and executed a 144-month adult sentence for the earlier conviction. Appellant argues that the district court abused its discretion by revoking his probation and erred by refusing to consider at the probation-revocation hearing a dispositional or durational departure from the 144-month adult sentence. Because we conclude that the district court neither abused its discretion nor erred, we affirm.

FACTS

In September 2001, appellant Steven Bollin, then age 17, was charged with two counts of first-degree criminal sexual conduct for allegedly performing sex acts on two boys, ages three and five. The state moved to certify Bollin to be tried as an adult, but Bollin agreed to plead guilty to one count and to receive a “guidelines sentence” in return for designation as an extended-jurisdiction juvenile (EJJ) and dismissal of the other count.

Before disposition, the district court ordered a psychological evaluation of Bollin. The psychologist stated in her report that Bollin’s score on an IQ test placed him in the range of “mild mental retardation.” The psychologist also noted that Bollin had been sexually abused, had grown up in a “severely dysfunctional and chaotic family,” had been severely abused physically by his family, and was “vulnerable” because of his mental retardation.

At disposition, the district court sentenced Bollin to 144 months in prison, stayed execution of the sentence, and placed Bollin on juvenile probation. The 144-month commitment was the presumptive sentence under the guidelines. Conditions of Bollin’s probation included that he remain law-abiding and be placed in a secure, residential sex-offender treatment program.

Soon thereafter, Bollin entered Mesabi Academy to begin sex-offender treatment. There, in October 2002, Bollin engaged in sexual activity with a 13-year-old fellow resident. Bollin was expelled from Mesabi Academy, and the state charged him with one count of fourth-degree criminal sexual conduct and one count of fifth-degree criminal sexual conduct. Bollin eventually pleaded guilty to the charge of fourth-degree criminal sexual conduct.

In a February 2003 probation-revocation proceeding, Bollin’s attorney (1) argued that his client’s mental retardation was a mitigating circumstance that supported continuing probation and (2) asked the district court to consider a dispositional or durational departure from the 144-month sentence. The district court, after deciding that there were no mitigating circumstances warranting continued probation, concluded that it lacked the authority to consider a dispositional or durational departure in an EJJ probation-revocation proceeding and executed the 144-month sentence. This appeal follows.

ISSUES

1. Did the district court abuse its discretion by declining to conclude that appellant’s mental retardation was a mitigating circumstance that warranted a continuation of appellant’s probation?

2. Can a district court consider a dura-tional departure from the sentencing guidelines at an EJJ probation-revocation proceeding?

ANALYSIS

I.

Bollin challenges the district court’s revocation of his probation on the ground that mitigating circumstances, namely his mild mental retardation, warranted continuing him on probation. Whether to revoke probation is within the district court’s discretion, and we will reverse a probation revocation only if there is an abuse of that discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn.1980).

A. Austin factors

Bollin first contends that the district court did not fully address the factors set forth in State v. Austin when it revoked his probation. In State v. B.Y., 659 N.W.2d 763, 768-69 (Minn.2003), the supreme court held that a court must consider the Austin factors in deciding whether “reasons exist to revoke the stay” of juvenile probation under Minn.Stat. § 260B.130, subd. 5 (2002). Austin requires that to revoke probation, a court must “1) designate the specific condition or conditions that were violated; 2) find that the violation was intentional or inexcusable; and 3) find that the need for confinement outweighs the policies favoring probation.” B.Y., 659 N.W.2d at 768 (citing Austin, 295 N.W.2d at 250).

In the adult context, we have held that unless a defendant argues at the probation-revocation hearing that the state has failed to present evidence that would satisfy the Austin factors, we may affirm a probation revocation if the factors are supported by sufficient evidence in the record. State v. Hlavac, 540 N.W.2d 551, 552-53 (Minn.App.1995). Bollin did not make that argument at the probation-revocation hearing. Instead, he argued that his mental retardation constituted a mitigating circumstance that justified continuing his probation. See Minn.Stat. § 260B.130, subd. 5 (providing that court may continue stay in EJJ proceeding after offender sentenced for certain designated offenses has violated probation only if the court makes written findings that there are mitigating circumstances).

The evidence in the record amply supports revocation under the Austin factors. The district court explicitly found, and the record shows, that Bollin violated the condition of his probation that required him to remain law-abiding by committing a new sexual offense while in treatment. The court also explicitly found, and the record shows, that that violation was intentional and inexcusable. On the third Austin factor, whether the need for confinement outweighs the policies favoring probation, the court stated “there is no alternative but to incarcerate [Bollin].” Although the court did not make an explicit finding addressing the policies favoring probation, it commented at length on the need for confinement in prison after Bollin re-offended while he was on probation and while he was housed in a secure treatment facility. Given the overwhelming eviden-tiary support for revocation under Austin, the district court’s failure to make an explicit finding on the third Austin factor does not require reversal or remand.

B. Mental retardation as a mitigating circumstance

Bollin argues that the district court abused its discretion by not fully considering Bollin’s mental retardation as a mitigating circumstance in deciding whether to revoke his probation. Bollin argued at the revocation hearing, and argues on appeal, that his mild mental retardation is a mitigating circumstance because it makes him vulnerable in prison and prevents him from qualifying for sex-offender treatment in prison. At the hearing, the state argued against treating Bollin’s retardation as a mitigating circumstance, claiming that the retardation did not affect his capacity to commit multiple sex crimes. The district court considered these arguments and decided against finding that Bollin’s mental retardation was a mitigating factor that warranted a continuation of probation. Furthermore, the supreme court in B.Y. stated that in an EJJ probation-revocation hearing, the “relevant mitigating factors are not those circumstances surrounding the original offense, but rather the mitigating factors relating to the probation violation.” B.Y., 659 N.W.2d at 769-70. Here, Bollin’s mental retardation relates neither to the original offense nor to the probation violation; it relates to Bollin’s safety and opportunity for treatment in prison. We conclude, therefore, that the district court did not abuse its discretion by not continuing Bollin’s probation because of his mental retardation.

II.

At the hearing in which the district court revoked Bollin’s probation, Bollin’s attorney asked the court to consider a durational departure from the 144-month commitment to prison or, in the alternative, a dispositional departure. The district court concluded that it lacked the discretion to consider a sentencing departure at an EJJ probation-revocation proceeding. On appeal, Bollin argues that it was error for the court to conclude that it lacked authority to consider a dispositional departure. This issue presents a question of law, which we review de novo. See State v. Nerz, 587 N.W.2d 23, 24-25 (Minn.1998).

In arguing that the district court has the authority to consider a dispositional departure at an EJJ probation-revocation hearing, Bollin relies on State v. Fields, 416 N.W.2d 734 (Minn.1987). In Fields, the supreme court held that a district court could consider a defendant’s argument, raised in an adult probation-revocation hearing, that the sentencing court had not given “adequate reasons” when it imposed an upward durational departure in sentencing. Id. at 735-36. In EJJ proceedings, however, the statute mandates that the initial disposition of the adult sentence is a stay of execution. Minn.Stat. § 260B.130, subd. 4(2) (2002). The district court, therefore, lacks discretion to impose a different disposition. In Fields, the district court at the probation-revocation hearing was being asked to reconsider its earlier discretionary decision to impose a durational departure. 416 N.W.2d at 735. But at his probation-revocation hearing, Bollin asked the court to reimpose the same disposition it had earlier imposed, as mandated by statute.

It is apparent that Bollin sought the stayed disposition for purposes of nullifying the court’s decision to revoke his stay of execution. No other purpose was served by the request. In Fields, the supreme court noted that a defendant sentenced to probation and intending to succeed on probation should not be forced to appeal the duration of his prison sentence or waive that challenge. Id. at 736. But no such choice would be forced on Bollin, who had no basis to challenge the mandatory stayed adult sentence when it was imposed. Instead, Bollin is seeking a second opportunity to contest execution of his adult sentence, after the district court has already determined that grounds exist to revoke the stay of execution.

Bollin cites no authority for allowing this second opportunity at litigating the revocation of probation. Fields, which allowed a challenge to the sentence duration, an issue unrelated to the probation-revocation decision, provides no such authority.

Bollin’s primary argument on appeal, however, is that the district court had discretion at the probation-revocation hearing to impose a downward durational departure. Bollin also cites Fields for this argument. While Fields certainly provides more support for a durational-depar-ture argument at the probation revocation than for a dispositional-departure argument, we conclude Bollin’s argument is without merit.

The EJJ statute explicitly requires the district court, if it finds reasons to revoke probation, to “order execution of the previously imposed sentence.” Minn.Stat. § 260B.130, subd. 5 (2002). This provision by its plain language would appear to prevent the district court from considering a request to modify the “previously imposed sentence.” Moreover, Fields allows an adult defendant to challenge a durational departure at the probation-revocation hearing. 416 N.W.2d at 736. Bollin received the presumptive sentence, which presents much narrower grounds for challenge than would a sentencing departure. See State v. Kindem, 313 N.W.2d 6, 7 (Minn.1981) (holding that a presumptive sentence will be reversed only in a “rare case”). And it is not clear that an offender should have an opportunity to argue mitigating circumstances that should have been argued at the disposition hearing when he has violated the conditions of his probation and appears at a probation-revocation hearing. Finally, the district court’s comments at Bollin’s probation-revocation hearing leave no doubt that, even if the court concluded it had the authority to grant a durational departure at that stage, it would not have done so.

DECISION

The district court did not abuse its discretion by revoking Bollin’s probation and did not err by refusing to consider a dura-tional departure from the presumptive sentence.

Affirmed.


author: GORDON W. SHUMAKER, Judge.

text:
    STATE of Minnesota, Respondent, v. David Charles PIRSIG, Appellant.
    No. C0-02-1688.
    Court of Appeals of Minnesota.
    Oct. 28, 2003.

      Mike Hatch, Attorney General, St. Paul, and Brian Roverud, Faribault County Attorney, Blue Earth, for respondent.
    Michael C. Davis, Special Assistant State Public Defender, St. Paul, for appellant.
    Considered and decided by SHUMAKER, Judge, WILLIS, Judge, and STONEBURNER, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

This case arises out of charges that appellant David Pirsig and his father, Edward Pirsig, stole grain from Paul and Charles More during 1996, 1997, and 1998. After a seven-day trial during April 2002, the jury found appellant guilty of two counts of theft of grain by swindle, over $35,000; 25 counts of theft of corporate property; and two counts of theft. Appellant now challenges the convictions, claiming that there was insufficient evidence to support them, the district court abused its discretion in admitting certain testimony on field maps, and the district court erred in substituting an alternate juror for a juror who became ill after the court released the jury to deliberate but before actual deliberations had commenced. Appellant also filed a pro se supplemental brief, claiming that the county attorney violated Minnesota Rules of Professional Conduct and Minn.Stat. § 388.08 (2002).

FACTS

Appellant David Pirsig and his father Edward Pirsig ceased their own farming operations because of financial problems. At the time, the Pirsigs were under contract to deliver a certain amount of grain to Peavey Elevators. Although the Pirsigs had some carry-over grain sales in early 1996, they were not able to complete their delivery obligation and Peavey cancelled the contract.

After the Pirsigs stopped their own farming operations, they entered into a seven-year custom-farming agreement with Paul and Charles More. The Mores were sellers of fertilizer, chemicals, and crop inputs to farmers in south-central Minnesota. In the early 1990s, the Pirsigs were among their customers.

In general, the custom-farming contract allowed the Pirsigs to continue to farm and to use their own equipment, but, because of the Pirsigs’ financial status, the Mores paid the upfront costs of land rental and crop inputs and paid the Pirsigs by acreage and crop. The Pirsigs were required by their contract to cultivate the land and to plant, harvest, dry, store, and deliver the grain crop. Because the Pirsigs had an existing relationship with the landowners from whom they had leased land for their own operations, the Mores authorized them to sign leases for their custom farming. Under the contract with the Mores, the Pirsigs farmed approximately 2,800 acres from 1996 through 1998.

Despite the custom-farming contract between the Pirsigs and the Mores, it was not commonly known in the local agricultural community that the Mores were financing the Pirsigs’ operations. Rather, many operators of agricultural businesses believed that the Pirsigs were continuing to do their own farming. For example, David Pirsig sold grain to Midwest Soya during the early 1990s and continued to sell grain to Midwest Soya from 1996 through 1998 under the name D & D Farms. The owner of Midwest Soya believed that David Pirsig was doing his own farming under that name. The Pirsigs did not report as income the payments for grain they sold to Midwest Soya but did deposit the receipts in a bank. This grain had test weights and moisture content consistent with the grain the Pirsigs delivered on behalf of the Mores.

To help manage their fields, in 1996 the Mores installed a grain monitor in the combine the Pirsigs used to harvest the grain under the custom-farming contract. The grain monitor uses a global positioning system (GPS) to collect data on specific field locations and crop yields for those locations. The data collected from the GPS monitor can be downloaded onto a Geographic Information System (GIS) software application. The GIS takes the location data from the GPS and overlays it onto a map that identifies certain correlations — such as soil types, combine swath width, and copy yields — for a particular field location.

In 1998, the Mores learned that they were short approximately 12,400 bushels of grain. Based on information from David Pirsig, they initially believed the shortage was caused by grain damage and was within an acceptable 10% margin of error based on a large grain yield. The Mores eventually began to suspect that the Pir-sigs had stolen the grain.

The Mores collected the data from the combine’s grain monitor and had it analyzed. The analysis showed that the monitor had been shut off at various times during combine use across various fields. The analysis also revealed that the swath-width setting on the monitor, registering the width of the stroke of the combine’s cutting blade, had been changed at various times without a corresponding change to the actual width of the combine blade. The changed setting resulted in an alteration of the crop-output data and actually lowered the crop-yield data.

At trial, David Pirsig contended that the monitor was faulty and that he and his father had told the Mores of the monitor problems. The Pirsigs’ cousin, who operated the combine, testified that the monitor had broken down a couple of times and had lost communication with the satellite. He also testified that the Pirsigs instructed him to change the swath-width setting without making a corresponding change to the combine’s blade. An acquaintance of the Pirsigs testified that, after the 1998 harvest, David Pirsig said that the repayment of a $10,000 loan David Pirsig obtained from the acquaintance “had to wait until Mores started hauling before [David Pirsig] could get away with some,” and “last year [David Pirsig] got away with $40,000.”

Ultimately, David Pirsig was found guilty by a jury of two counts of theft of grain by swindle, over $35,000; 25 counts of theft of corporate property; and two counts of theft. This appeal followed.

ISSUES

1. Is the evidence sufficient to prove beyond a reasonable doubt that appellant committed theft by swindle, conspiracy to commit theft by swindle, theft of corporate property, and theft over $2,500?

2. Did the district court abuse its discretion by admitting certain expert testimony?

3. Is it reversible error for the court to replace a principal juror with an alternate before deliberations had begun and after defense counsel informed the court that appellant consented to the substitution even though appellant did not personally appear and express his consent?

4. Did the county attorney violate either the Minnesota Rules of Professional Conduct or MinmStat. § 388.08 (2002) by acting with a conflict of interest?

ANALYSIS

I

In determining whether the evidence is sufficient to support a conviction, we view that evidence in a light most favorable to the verdict and assume that the jury disbelieved any evidence contrary to that verdict. State v. Chomnarith, 654 N.W.2d 660, 664 (Minn.2003). On appeal, we do not retry the case, but review the record to determine whether the evidence was sufficient to permit the jurors to reach their verdict. State v. Schneider, 597 N.W.2d 889, 895 (Minn.1999). We will not overturn the jury’s verdict if, “giving due regard to the presumption of innocence and to the prosecution’s burden of proving guilt beyond a reasonable doubt, the jury could reasonably have found the defendant guilty of the charged offenses.” Chomnar-ith, 654 N.W.2d at 664.

Circumstantial evidence is given the same weight as any other evidence as long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt. State v. Gates, 615 N.W.2d 331, 337 (Minn.2000). To succeed in a challenge to a conviction solely based on circumstantial evidence, a convicted person must point to evidence within the record that is consistent with a rational theory other than guilt. Id. at 338. However, “possibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem un reasonable.” Id. (quoting State v. Ostrem, 535 N.W.2d 916, 923 (Minn.1995)).

A person commits a theft when he “intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other’s consent and with intent to deprive the owner permanently of possession of the property.” Minn.Stat. § 609.52, subd. 2(1) (1996). A theft by swindle occurs when a person, “whether by artifice, trick, device, or any other means, obtains property or services from another person.” Minn.Stat. § 609.52, subd. 2(4) (1996). Theft by swindle requires an affirmative intent to defraud. State v. Flicek, 657 N.W.2d 592, 598 (Minn.App.2003). Theft of corporate property occurs when a person, “with intent to defraud, diverts corporate property other than in accordance with general business purposes.” Minn.Stat. § 609.52, subd. 2(15) (2000). Conspiracy to commit theft by swindle requires that a person who conspires with another to commit the crime “does some overt act in furtherance of such conspiracy.” Minn.Stat. § 609.175, subd. 2 (1996).

David Pirsig argues that the state failed to present sufficient evidence of his guilt. He argues that the state’s primary evidence that D & D Farms sold grain belonging to the Mores was based on inaccurate and unreliable data from the combine grain monitor. He argues that the grain-monitor data “does not establish the value of the resulting loss” because it could not take into account such variables as the existence of weeds, putting the combine into reverse, or change in field terrain. Finally, he argues that his statements to an acquaintance that appellant “had to wait until Mores started hauling before [appellant] could get away with some” and “last year [appellant] got away with $40,000 or 40,000” were ambiguous and could just as easily mean “spinning some yarn to a creditor to delay” payment.

The state’s evidence included testimony and documentary evidence that explained the combine monitor data; showed that David Pirsig sold grain to several elevators under the name of D & D Farms during 1996 to 1998 and at the same time had filed financial documents showing that D & D Farms had no grain on hand or crop for sale; showed that David Pirsig’s tax returns did report grain sales in 1996 and 1997; showed that David Pirsig negotiated a settlement with Peavey because the Pir-sigs could not deliver in 1996 the amount of grain required under their grain-delivery contract; showed the dollar amounts of the grain sales received by D & D Farms; and indicated that the test weights and moisture contents of the D <& D-delivered grain were consistent with the grain that the Pirsigs delivered on behalf of the Mores’ custom-farming operation.

Although there is evidence from the combine operator that the monitor had some operational problems, the person who analyzed the monitor data testified at trial as to how he retrieved the data and used that data to determine field-crop yields based on monitor swath widths. He testified that the data showed instances where the yields in the middle of many of the fields would drastically change. He did not testify to the actual yields generated. He also testified that in further review of the data he found that the swath width on the monitor had been changed. His testimony regarding the change to the swath-width setting on the monitor was corroborated by the combine operator, who also testified that the Pirsigs told him when to switch the swath-width setting on the monitor but that he did not make a corresponding change to the combine blade.

When the combine monitor data is viewed together with the state’s significant and substantial evidence, such as the Pir-sigs’ financial statements and known sales of grain under the name of D & D Farms, a jury could have reasonably concluded that David Pirsig was guilty of theft, theft of corporate property, and theft by swindle. And we leave to the jury’s discretion any credibility determinations relating to the testimony by an acquaintance of David Pirsig that David Pirsig “got away with 40,000.” See State v. Cooper, 561 N.W.2d 175,179 (Minn.1997) (stating that jury is in the best position to evaluate a witness’s credibility and to weigh the evidence). Based on our review of the evidence as a whole and in the light most favorable to the jury’s decision, we conclude that David Pirsig has not shown that his theory of innocence makes the state’s theory of guilt unreasonable. The evidence is sufficient to sustain the jury’s finding of guilt.

II

David Pirsig argues that the district court abused its discretion by admitting expert testimony regarding data collected by the combine monitor. He argues that the monitor did not accurately record crop yield and the federal government did not recognize yield data from these types of monitors for purposes of issuing crop insurance; therefore, such expert testimony was confusing to the jury and not helpful in determining whether appellant stole grain.

The state argues that David Pirsig failed to move before trial for a hearing to challenge the scientific reliability of the combine grain monitor. The district court determined that, under State v. Bauer, 512 N.W.2d 112, 115 (Minn.App.1994), aff’d 516 N.W.2d 174 (Minn.1994), such a hearing must be held at the pretrial stage and that, because trial had already begun, David Pirsig’s challenges to the monitor’s scientific reliability could be explored on cross-examination. See id. (stating that a party waives the right to attack the general scientific credibility of emerging scientific techniques at trial when he fails to move to suppress the evidence before trial).

David Pirsig lost a procedural opportunity to challenge the scientific reliability of the combine grain monitor, but never waived the right to challenge the probative value of the evidence. The district court allowed cross-examination, and David Pir-sig’s attorney had full opportunity to explore and challenge the reliability of the combine monitor.

A district court has discretion in deciding whether to admit evidence. State v. Martin, 614 N.W.2d 214, 223 (Minn.2000). The district court also has the discretion to determine whether to admit an expert’s opinion. State v. Ture, 632 N.W.2d 621, 631-32 (Minn.2001). To be admissible, expert testimony must be relevant and must be helpful to a juror in understanding evidence in a subject matter in which an inexperienced juror may be unable to form a correct judgment without an expert’s testimony. State v. Ritt, 599 N.W.2d 802, 811 (Minn.1999). We perform a de novo review to determine whether a particular technique is generally accepted in the relevant scientific field, and review under an abuse-of-discretion standard whether an expert witness is qualified and the testimony helpful to the jury. Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn.2000).

The record here indicates that the GPS technology has existed for many years and has been used in the agricultural community since 1992. The expert witness testified that he has been trained to analyze the software data that is produced by the GIS software system and has done that for about five years. The state used this testimony to show that David Pirsig changed the monitor’s swath widths across various fields, and that this alteration resulted in a decreased crop-yield report. Such evidence would be helpful to a juror. We conclude that the district court did not abuse its discretion by allowing the combine-monitor testimony.

Ill

David Pirsig also argues that the district court committed reversible error when it substituted an alternate juror for a regular juror who had become ill. The court had discharged the alternate jurors, but the jury had not begun deliberating when one member became ill. David Pir-sig authorized his attorney to consent to the substitution of an alternate but contends he was not physically present in the courtroom to personally state his consent. He contends that it was error for the court to make the substitution outside his personal presence.

Minnesota law requires that a “defendant be present at ‘every stage of [his] trial.’ ” State v. Charles, 634 N.W.2d 425, 432 (Minn.App.2001) (quoting Minn. R.Crim. P. 26.03, subd. 1(1)). See generally State v. Givens, 544 N.W.2d 774, 777 (Minn.1996). (implying defendant be present at sentencing); Vernlund v. State, 589 N.W.2d 307, 310 (Minn.App.1999) (implying defendant be present when entering a plea); State v. Thomblad, 513 N.W.2d 260, 263 (Minn.App.1994) (implying defendant be present when waiving right to an attorney). This includes the right to be present when the district court responds to a jury’s questions during deliberations. State v. Sessions, 621 N.W.2d 751, 755-56 (Minn.2001).

A defendant may, however, waive a variety of his rights, such as his right to be sentenced under the guidelines, his “Miranda rights, [his] right to a jury trial, and [his] right to be present at trial.” Givens, 544 N.W.2d at 777. A defendant can also waive the right to be present when a court responds to the jury’s various requests. Charles, 634 N.W.2d at 432.

When a right is waived, “the decision to waive is personal and is not one for counsel to make but one for the defendant to make after consultation with counsel.” Id. Absent a rule or precedent to the contrary, a defendant need not be physically present in the courtroom for every matter if he has consulted with his attorney and reached a decision, authorized his attorney to proceed without his presence, and the attorney confirms on the record his chent’s decision.

In this case, the district court discharged the three alternate jurors after reading the final jury instructions. When the 12 principal jurors retired for deliberations, one of the principal jurors became ill almost immediately and needed medical assistance. The record clearly indicates that the 12 principal jurors had not yet begun deliberations when one of them became ill.

The district court recalled the first alternate juror with the consent of counsel for the state and counsel for appellant. The court questioned the alternate and determined that she had not discussed the case with the other alternates or with anyone else after being discharged. The record is unclear whether David Pirsig was present in the courtroom when the district court questioned and substituted the alternate juror. But the record confirms, through the statements by David Pirsig’s trial counsel, that David Pirsig agreed to substitute an alternate juror for the ill juror.

We conclude that the district court did not err. A defendant can waive his right to be present when an alternate juror is substituted if the defendant has delegated authority to his attorney to agree to the substitution. There is no rule requiring a defendant to be physically present upon juror substitution. The only requirement would be that the defendant consented personally to the alternate-juror substitution. In this case, David Pirsig personally consented to the substitution and delegated authority to his attorney to agree to the substitution, and his attorney indicated on the record that David Pirsig consented to an alternate. Cf. Charles, 634 N.W.2d at 432-33 (finding district court erred where defendant’s attorney made a unilateral decision that defendant’s presence was not necessary when the court responded to jury requests during deliberations on substantive legal matters). Although it may be a better practice for the district court to question the defendant on the record, we find no error or prejudice under the current circumstances.

IV

We have reviewed appellant’s pro se claims, including whether the county attorney violated either the Minnesota Rules of Professional Conduct or Minn. Stat. § 388.08 (2002) by acting with a conflict of interest. The Board of Professional Responsibility is the appropriate forum to determine whether any rules of professional conduct have been violated. Kerkhoff v. Kerkhoff, 400 N.W.2d 752, 759 (Minn.App.1987), review denied (Minn. Mar. 25, 1987), review denied (Minn. Apr. 23, 1987). And we have determined that his statutory conflict-of-interest claim is without merit.

DECISION

The record contains sufficient evidence for the jury to convict David Pirsig of theft by swindle, theft of corporate property, and theft. The district court did not abuse its discretion in admitting testimony relating to data produced by the combine grain monitor. The district court did not err in substituting an alternate juror for an ill juror after the jurors were dismissed but before deliberations had begun because David Pirsig, although not personally present in the courtroom, personally consented to the substitution.

Affirmed.


author: ROBERT H. SCHUMACHER, Judge.

text:
    In re the MARRIAGE OF Dawn Marie KLONCZ, n/k/a Black, Petitioner, Appellant, v. James Andrew KLONCZ, Respondent.
    No. A03-549.
    Court of Appeals of Minnesota.
    Oct. 28, 2003.

      John A. Warchol, Warehol Berndt Ha-jek, P.A., Minneapolis, for appellant.
    Jennifer R. Wellner, Wellner Isaacson, PLLP, Circle Pines, for respondent.
    Considered and decided by SCHUMACHER, Judge, LANSING, Judge, and KALITOWSKI, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant Dawn Marie Kloncz, n/k/a Black, (mother) brings this appeal from a determination by the district court that the motion for amended findings and a new trial of respondent James Andrew Kloncz (father) was timely served. We reverse.

FACTS

The marriage of the parties was dissolved, and they share joint legal custody of their two children. Mother has physical custody. By order filed September 25, 2002, the district court granted mother permission to permanently move the residence of the parties’ minor children to the United Kingdom. The court’s order also addressed issues of parenting time, child support, and transportation costs and denied father’s request for change in custody.

On November 27, 2002, mother sent father notice of filing using two methods of service: facsimile and mail. Thirty-three days later, on December 30, father personally served a motion for amended findings and new trial. Thereafter, mother made a countermotion, arguing father’s motion was not timely served and therefore precluded the court from amending the original order or addressing the motion for new trial.

The district court granted in part and denied in part father’s December 30 motions. As to mother’s countermotion, the court made the following findings: notice of filing occurred just before the Thanksgiving holiday; due to the holiday, father’s attorney was not aware of the service by facsimile; father timely served his motion based on the mailed service; and mother did not suffer any harm from the three-day delay in service as the time for hearing was extended anyway due to other factors.

ISSUE

Is a motion for amended findings and new trial timely if served 33 days after notice of filing where notice of filing was served on the same day by both facsimile and mail?

ANALYSIS

This issue requires interpretation of the Minnesota Rules of Civil Procedure. The interpretation of court rules presents a question of law and is properly reviewed de novo. Madson v. Minn. Min. & Mfg. Co., 612 N.W.2d 168, 170 (Minn.2000). Rules “shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.” Minn. R. Civ. P. 1.

Minn. R. Civ. P. 52.02 requires parties to bring a motion to amend findings within the time allowed for a motion for new trial. A motion for new trial must be served within 30 days after a general verdict or service of notice of filing. Minn. R. Civ. P. 59.03. Service shall be made personally, by facsimile, or by mail. Minn. R. Civ. P. 5.02. “Service by mail is complete upon mailing. Service by facsimile is complete upon completion of the facsimile transmission.” Id. If notice of filing is served by mail, three days shall be added to the 30 day period. Minn. R. Civ. P. 6.05. Advisory committee comments to rule 5.02 state:

The amendment to Rule 5.02 provides an express mechanism for service by facsimile. Service by facsimile has become widely accepted and is used in Minnesota either by agreement or presumption that it is acceptable under the rules or at least has not been objected to by the parties. The committee believes an express authorization for service by facsimile is appropriate and preferable to the existing silence on the subject. ... In addition [to] providing for service by facsimile, Rule 6.05 is amended to create a specific deadline for timely service. This rule adds an additional day for response to any paper served by any means other than mail (where 3 extra days are allowed under existing Rule 6.05, which is retained) and where service is not effected until after 5:00 p.m. local time.

Minn. R. Civ. P. 5.03 1996 comm. cmt.

Failure to comply with time limitations is a jurisdictional defect. Bowman v. Pamida, Inc., 261 N.W.2d 594, 597 (Minn.1977) (interpreting time limitations under Minn. R. Civ. P. 59.03). In Ring v. McPeek the time period to move to amend or for new trial expired two months before motions were brought. 423 N.W.2d 711, 712 (Minn.App.1988). The trial court allowed the motions noting counsel’s failure to comply with rule 59.03 was due to “sheer inadvertence and excusable neglect.” Id. This court, reversing the trial court, held the time limit under rule 59.03 is absolute: “The trial court had no jurisdiction to amend the original findings of fact and conclusions or to address the motion for a new trial because it was not timely filed.” Id.

In Huntsman v. Huntsman, notice of filing was sent by both mail and facsimile on the same day. 633 N.W.2d 852, 854 (Minn.2001). Notice of appeal was served 60 days thereafter. Id. In a footnote, the Minnesota Supreme Court stated: “Appellant would have had an additional 3 days to file his notice of appeal if ... [the notice of filing] had only been mailed, Minn. R. Civ. P. 6.05, but — as we discuss below — his appeal from notice served by fax was still timely.” Huntsman, 633 N.W.2d at 854 n. 1. The court thus suggests the three additional days for response under rule 6.05 applies when service is completed only by mail.

In this case, mother served notice of filing by facsimile and mail on November 27, 2002. Father served his motion for amended findings and new trial 33 days later. Father argues service by mail is the long established and secure method of service, sending the same by facsimile is merely a gesture and good business practice, and that service by mail allows three additional days for response. Thus, he asserts his service on December 30, 2002 was timely.

The comment to rule 5.02 and the Minnesota Supreme Court’s statement in Huntsman suggest service by facsimile is an established and secure practice of service. Service by facsimile is complete upon completion of the facsimile transmission and triggers a deadline that does not include the three additional days allowed for by rule 6.05 when service is completed by mail. Minn. R. Civ. P. 5.02. Mother completed facsimile transmission of the notice of filing on November 27, 2002. Father’s counsel admits that the fax was received in her office but states that she was unaware of the facsimile transmission due to lack of adequate office procedures. Even if the facsimile had been overlooked, on the cover letter to the notice of filing, in the upper right-hand corner, it is printed: Via Facsimile and United States Mail. As in Ring, excusable neglect is not a reason to breach the absolute rule of timeliness. Father’s motion was served 33 days after the notice of filing was served by facsimile. Father’s motion was therefore untimely, as it was not served within the 30-day proscribed period.

DECISION

Because father did not timely move to amend within 30 days after receiving service by facsimile, the district court did not have jurisdiction to amend the original findings of fact or conclusions or address the motion for new trial.

Reversed.


author: STONEBURNER, Judge.

text:
    Lorie J. LONG, f/k/a Lorie J. Creighton, Petitioner, Appellant, v. Michael J. CREIGHTON, Respondent.
    No. A03-265.
    Court of Appeals of Minnesota.
    Nov. 4, 2003.

      Neal H. Nelson, Roseville, MN, for appellant.
    Michael J. Creighton, Brooklyn Center, MN, pro se respondent.
    Considered and decided by STONEBURNER, Presiding Judge, TOUSSAINT, Chief Judge, and SHUMAKER, Judge.
   OPINION

STONEBURNER, Judge.

Appellant-mother Lorie J. Long challenges the district court’s suspension of respondent-father Michael J. Creighton’s child-support obligation for the parties’ three children in Long’s custody, which the district court made retroactive to the date Creighton began receiving public assistance. Long also challenges the district court’s order requiring her to pay guideline support for one child transferred by agreement of the parties to Creighton’s temporary custody. The record supports the district court’s findings regarding Creighton’s income and expenses, and therefore, we affirm the district court’s determination that Creighton was entitled to a suspension of his child-support obligation. Because the district court specifically found that Creighton received need-based public assistance during the period for which he sought retroactive modification of child support, we affirm the district court’s order making the modification retroactive to the date Creighton began receiving support. But the district court abused its discretion by requiring Long to pay guideline support for the child temporarily transferred to Creighton’s custody because that determination is based, in part, on a finding that Long’s current spouse has an obligation to support the children in Long’s custody. And the district court failed to consider that Long provides sole support for the two children in her custody. Because Long’s current spouse does not have an obligation to support Long’s children from her marriage to Creighton, and Long is entitled to a downward deviation from her guideline support obligation for one child in recognition of her sole support of the two children in her custody, we reverse and remand for a re-determination of Long’s support obligation for the child in Creighton’s custody.

FACTS

Appellant Lorie J. Long had custody of the three children of her marriage to respondent Michael J. Creighton from their separation in 1996 until November 1, 2002, when she agreed that the oldest child could temporarily live with Creighton. Creighton has been engaged in an ongoing attempt since his child-support obligation was established in 1996 to reduce his obligation and have child-support arrearages forgiven.

By notice of motion and motion served on Long on November 8, 2002, Creighton sought a change of custody of the oldest child and a modification of child support to reflect that change, as well as modification of his support obligation retroactive to April 2001, based on his receipt of need-based general assistance. The parties appeared pro se at the hearing on Creighton’s motions that took place in January 2003. Creighton’s child-support obligation was last determined in January 2000 when he was employed by Target with a net monthly income of $1,341. With COLA adjustments, his obligation was $487 per month at the time of the hearing.

A child-support officer testified that Creighton received general assistance retroactive to April 2001. She also testified that his child-support arrearages through December 2002 totaled $9,123.26, and that if the district court suspended Creighton’s child-support obligation retroactive to April 2001, Creighton would have overpaid child-support and could request that Long repay the support that she had received.

Creighton testified that he had been receiving general assistance since April 2000. He denied having worked in the 90 days prior to the hearing. Creighton testified that he was “doctor ordered not to work. I just had major surgery ... September 30 through October 10.” The district court directed Creighton to provide a notarized statement from his doctor verifying that Creighton is currently unemployable because of a medical condition.

Michael Jeddoloh, M.D., subsequently sent an unnotarized letter to the district court, stating that he first saw Creighton in April 2001 for multiple problems, but primarily for a back injury he may have suffered at work that was making it difficult for him to work. Dr. Jeddoloh reviewed other problems, including Creighton’s Crohn’s disease and a ventral hernia. Dr. Jeddoloh verified that Creighton had adjustable gastric band surgery and repair of the hernia on September 30, 2002, after which he suffered a flare of Crohn’s disease, “and is having great difficulty managing this condition at this point.” Despite Creighton having lost 25 pounds since surgery, Dr. Jeddoloh states that Creighton

remains quite morbidly obese in the upper 300 range-At this time, the patient is not able to work. He needs bathroom accessibility frequently. He does have chronic low back pain, which with his potential weight loss, hopefully will be improved in the future. He is currently following with a gastroenterol-ogist and surgeons for these issues respectively.

At the hearing, Long provided Schedule C from her 2001 tax returns, showing a profit from her hair stylist business of $24,122. She testified that she does not have any additional income, she and the children are covered by her current spouse’s medical insurance, and she does not make any contributions to a retirement plan. Long testified that her current spouse makes about $45,000 per year. When asked what percentage of household expenses she pays, Long stated “[I]t’s all joint, it’s all combined. Our monies are combined.” The district court required Long to provide a complete copy of her 2001 tax return and a notarized list of family household expenses and the percent of those expenses that she pays. Long provided the tax return and a notarized statement of monthly expenses, but did not provide any information about the percent of the expenses that she pays.

Based on the testimony at the hearing and the parties’ post-hearing submissions, the district court granted Creighton’s request for temporary physical custody of the oldest child, suspended Creighton’s child-support obligation retroactive to April 1, 2001, and ordered Long to pay child support to Creighton in the amount of $362 per month retroactive to November 1, 2002.

Long appeals the retroactive suspension of Creighton’s child-support obligation and the determination of her child-support obligation that is based on apportioning 69% of household expenses to her current husband and that ignores the fact that she provides sole support for the two children in her custody.

ISSUES

I. Did the district court abuse its discretion by suspending respondent-father’s child-support obligation and making the suspension retroactive to the date when he began receiving general assistance benefits, approximately 19 months prior to the date that appellant-mother was served with respondent-father’s motion for a child-support modification?

II. Where appellant-mother’s household expenses are for appellant-mother, her two children from her marriage to respondent-father, and her current husband, did the district court abuse its discretion by apportioning 69% of those expenses to her current husband, based on a comparison of incomes, to conclude that appellant-mother has the ability to pay guideline child support of 25% of her net monthly income for support of the child in respondent-father’s temporary custody?

III. Is appellant-mother entitled to a downward deviation from guideline child support for the child in respondent-father’s temporary custody based on the fact that she provides sole support in her home for two of the children from her marriage to respondent-father?

ANALYSIS

The district court has broad discretion in determining whether to modify a child-support obligation. In re Ramsey County ex rel. Pierce County, Wis., 645 N.W.2d 747, 750 (Minn.App.2002). This court will reverse the district court’s determination regarding a child-support modification “only if the district court abused its broad discretion” and resolved the matter in a manner “that is against the logic and the facts on [the] record.” Id. (citation omitted).

When a party moves to modify a child-support obligation, the district court must first determine whether a change in circumstances warrants modification of the existing obligation. Minn.Stat. § 518.64, subd. 2(a) (2002). The district court may modify a child-support obligation if there has been a substantial increase or decrease in the earnings of a party. Minn.Stat. § 518.64, subd. 2 (2002). If child support has been modified several times, this court looks to the last modification order to determine whether there has been a change in circumstances. In re Custody of A.S.R., 589 N.W.2d 607, 611 (Minn.App.1995).

One of the statutory bases for modification of child support is a showing of substantially decreased earnings of a party. Minn.Stat. § 518.64, subd. 2(a)(1). This court has also recognized that a change in physical custody is normally a change of circumstances that makes an original support order unreasonable and unfair. Buntje v. Buntje, 511 N.W.2d 479, 481 (Minn.App.1994).

Long does not dispute that the temporary change of the oldest child’s custody to Creighton warrants a modification of Creighton’s child-support obligation. Long asserts, however, that the district court abused its discretion by accepting without question Creighton’s testimony that he relies on “loans” from his family to meet his needs and by failing to confirm whether these “loans” were in fact gifts. See Barnier v. Wells, 476 N.W.2d 795, 797 (Minn.App.1991) (stating that regularly received gifts may be considered as income for a child-support determination). Long notes that in response to one of Creighton’s prior motions to modify child support, an administrative law judge found that Creighton’s income was supplemented by “gifts” and “loans” from friends such that modification of child support was not warranted even though Creighton was unemployed.

Long also asserts that the district court abused its discretion by accepting Dr. Jed-doloh’s unnotarized letter and suspending Creighton’s child-support obligation without any evidence of the duration of his alleged inability to work. Long argues that she should have been allowed to cross-examine Dr. Jeddoloh.

I.

A. Suspension of child-support obligation based on inability to work

The district court is not required to hold an evidentiary hearing on a motion to modify child support. Minn.Stat. § 518.64, subd. 2(f). In general, a motion to modify child support may be determined on affidavits without the need for cross-examination. Mathias v. Mathias, 365 N.W.2d 293, 296-97 (Minn.App.1985). This is because a child-support modification generally only requires one party to show a change in need or ability to pay. Id. at 297 (quoting Saturnini v. Saturnini, 260 Minn. 494, 498, 110 N.W.2d 480, 483 (1961)). The district court has discretion to determine whether an evidentiary hearing is required. Id.

Long does not challenge the district court’s finding that Creighton’s living expenses exceed his income from general assistance by approximately $360 per month. But she challenges the district court’s acceptance of Creighton’s testimony that his only income is from general assistance and food stamps and that he meets his need through loans from family. And she objects to the district court’s acceptance of and reliance on Dr. Jeddoloh’s unnotarized letter, after the court cautioned Creighton that a letter from his doctor must be notarized, for the proposition that Creighton is unable to work for medical reasons.

Long, however, has not provided any evidence that Creighton was regularly receiving gifts during the time period for which he sought modification of his child support or that he was able to work during any of this time. The child-support officer confirmed that Creighton has received general assistance as of April 2001. Given Creighton’s history of unsuccessfully seeking to avoid or modify child support based on his medical condition, a more detailed inquiry by the district court into Creighton’s current situation may have been warranted. But, based on the evidence in the record, we cannot say that the district court abused its discretion either by declining to schedule a further evidentiary hearing or by relying on Creighton’s testimony and the doctor’s letter when the court suspended Creighton’s child-support obligation based on his lack of funds and inability to work.

B. Retroactive modification to date general assistance began

Forgiveness of unpaid, child-support arrears that have accrued before the party has brought a motion to modify child support is a retroactive modification governed by Minn.Stat. § 518.64, subd. 2(d). Darcy v. Darcy, 455 N.W.2d 518, 524 (Minn.App.1990). In general, a child-support order may be modified only back to the date of service of the notice of motion for modification. Minn.Stat. § 518.64, subd. 2(d). But, the district court may retroactively modify to an earlier date if the court expressly finds that “the party seeking modification was a recipient of ... public assistance based upon need during the period for which retroactive modification is sought.” Id.

In this case, the district court cited the statute in its order and expressly found that Creighton’s “General Assistance cash grant, which is need-based, was effective April 2001.” And on this basis, the district court determined that Creighton’s child-support obligation should be suspended as of April 1, 2001.

Long argues that the district court failed to analyze the effect of the retroactive modification. But the child-support officer, at the beginning of the hearing, informed the district court of the possible consequences of the retroactive modification. And as desirable as a full analysis and detailed findings may be, there are no statutory or case law requirements that make their absence an abuse of discretion. Based on the law and the record, we cannot say that the district court abused its discretion by suspending Creighton’s child-support obligation retroactive to the date when he began to receive need-based general assistance.

II.

Long challenges the district court’s reduction of her claimed monthly expenses by 69% based on its finding that her current husband is responsible for that amount of Long’s monthly living expenses as a violation of the statutory prohibition on considering the financial circumstances of her current spouse. Minn.Stat. § 518.64 subd. 2(c)(1). We agree.

Minn.Stat. § 518.551, subd. 5(b)(1) (2002), explicitly excludes from the definition of net income “the income of the obligor’s spouse.” Although the district court did not base its determination of Long’s net income on a direct consideration of her spouse’s income, when the court found that Long’s spouse is responsible for 69% of the family’s total expenses because he earns 69% of the family’s total income, the court indirectly made Long’s spouse responsible for the support of Long’s children. No case law or statute imposes a legal duty upon a new spouse to provide support for his or her step-children. Wende v. Wende, 386 N.W.2d 271, 276 (Minn.App.1986). In considering Long’s ability to pay child support on remand, the district court may not attribute expenses necessary for the support of Long and her children, at the standard of living enjoyed by Long and Creighton during their marriage, to Long’s current spouse.

III.

Long also argues that the district court abused its discretion by setting her child-support obligation for the child in Creighton’s temporary physical custody without recognizing that she provides the sole financial support for the parties’ two children who are in her custody. Because this case involves both split physical custody and a suspension of Creighton’s support obligation, we agree that the district court abused its discretion in setting Long’s child-support obligation.

Split physical custody exists when each parent has sole physical custody of some, but not all, of the parents’ children. Sefkow v. Sefkow, 427 N.W.2d 203, 215 (Minn.1988). Where split physical custody exists, a support obligation is determined for each parent and those obligations are then offset against each other. Id. at 217. Here, the district court set Long’s child-support obligation at 25% of her net monthly income, the guideline amount for her net monthly income. Minn.Stat. § 518.551, subd. 5(b). In doing so, however, the district court gave no indication that it considered that, because Creighton’s child-support obligation has been suspended, Long also provides the sole financial support for the two children residing with her.

When setting a support obligation, as well as when determining whether to deviate from the presumptively applicable guideline support obligation, the district court shall take into consideration certain statutory factors, including all earnings, income, and resources of the parents and the financial needs of the children. Minn. Stat. §§ 518.551, subd. 6(c)(1)®, (i), 518.64, subd. 2(c)(1). A support obligor with Long’s net monthly income has a guideline support obligation for three children of 35% of her net monthly income, and a guideline support obligation for one child of 25% of net monthly income. Here, Long receives no support from Creighton and, on this record, an order that requires Long to pay 25% of her net monthly income for support of the child in Creighton’s temporary physical custody unduly favors that child over the two children in Long’s physical custody, possibly jeopardizing the best interests of the children in her custody. Therefore, on this record, we cannot uphold a rigid adherence to the guidelines. See Linderman v. Linderman, 364 N.W.2d 872, 875 (Minn.App.1985) (noting cases involving split physical custody can render mechanical application of the child-support guidelines improper).

In Malecha v. Malecha, we affirmed a district court’s departure from the guidelines to require a parent to pay 30% of his net monthly income for three children in the other parent’s custody, rather than 39% as required by the guidelines. 386 N.W.2d 292, 294 (Minn.App.1986). The district court in Malecha arrived at 30% by noting that the parent’s support for all four children under the guidelines would be 39% of his net monthly income and by attributing 9% of his net monthly income to the support of the child in his custody. Id. at 293. We are not suggesting that the formula used in Malecha must be followed, and leave to the district court’s discretion the determination of an appropriate calculation for a downward deviation of Long’s guideline child-support obligation that takes into account all of the factors in Minn.Stat. § 518.551, subd. 5(c), for all of the children for whom she provides sole support.

DECISION

The district court did not abuse its discretion by suspending Creighton’s child-support obligation retroactive to the date he began receiving public assistance, which the district court expressly found to be need-based, where the record supports the district court’s determination that Creighton is unable to work at this time due to his medical condition. The district court abused its discretion by requiring Long’s current spouse to be responsible for a percentage of the total household expenses equal to the percent of his contribution to the total family income. The district court also abused its discretion by mechanically applying the child-support guidelines to determine Long’s support obligation for the child in Creighton’s custody without considering her ability to meet the needs of the two children in her custody for whom she provides sole support. We reverse the determination of Long’s child-support obligation and remand for recalculation of Long’s child-support obligation consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

      . At the hearing on Creighton’s motions, the parties agreed to a temporary change of the oldest child's custody to Creighton.

      . The district court did not consider or make any determinations regarding whether Long will be required to repay any child-support overpayments, and this matter is not before us on appeal.

      . We disagree with Long's assertion that, but for Dr. Jeddoloh's letter, relitigation of whether Creighton’s medical condition prevented him from working is barred by principles of res judicata and collateral estoppel. Res judi-cata bars a second suit for the same claim by the same party. Kaiser v. Northern States Power Co., 353 N.W.2d 899, 903 (Minn.1984). And collateral estoppel only applies when the issue at hand is identical to an issue previously litigated. Deli v. Hasselmo, 542 N.W.2d 649, 656 (Minn.App.1996). Clearly Creighton has never previously litigated the issue of whether he was medically unable to work during the periods at issue in this case.