author: ANDERSON, PAUL H., Justice.

text:
    Wayne Alan BUTT, Appellant, v. Eleanor Anna SCHMIDT, Respondent.
    No. A06-1015.
    Supreme Court of Minnesota.
    April 17, 2008.

      Mark A. Olson, Burnsville, for appellant.
    Larry John Laver, Woodbury, for respondent.
   OPINION

ANDERSON, PAUL H., Justice.

Appellant Wayne Alan Butt commenced this action for the dissolution of his marriage to respondent Eleanor Anna Schmidt. After the district court issued its final dissolution judgment and decree, Butt sought relief from the court of appeals, claiming that the district court erred when it 1) failed to apply Butt’s child support calculation retroactively to the date the parties entered into a stipulation for joint custody; 2) declined to impute earned income to Schmidt when calculating child support; and 3) refused to treat Schmidt’s spousal maintenance award as income when calculating child support. The court of appeals affirmed in part as to the issues of retroactive application of child support and imputation of earned income for purposes of child support. But the court reversed in part, remanding on the issue of treating Schmidt’s spousal maintenance award as income for calculating child support. In its opinion, the court of appeals also indicated that the district court could modify its spousal maintenance award.

We granted review as to whether 1) the court of appeals erred when it gave the district court jurisdiction to modify spousal maintenance after the parties had waived the right to future modification of maintenance; 2) the district court erred by failing to impute income to Schmidt; and 3) the district court erred by failing to retroactively apply the final child support calculation to the date that the court ordered joint custody of the children. We affirm in part, reverse in part, and remand.

On December 23, 2003, appellant Wayne Alan Butt commenced this action to dissolve his marriage with respondent Eleanor Anna Schmidt. When the action was commenced, the parties had three minor children and one emancipated child. Both parties filed motions for temporary relief regarding, among other things, child custody, child support, and spousal maintenance. Based on the parties’ motions and a hearing, the district court awarded the parties temporary joint legal custody and Schmidt temporary sole physical custody of the minor children. The court further ordered that, in light of Butt’s income and Schmidt’s unemployment, Butt pay Schmidt temporary child support in the amount of $2,358 per month and temporary spousal maintenance in the amount of $1,010 per month. The court stated that the following issues would be reviewed de novo at trial: 1) Butt’s income and withholding; 2) Schmidt’s employment status; and 3) Butt’s spousal maintenance obligation.

In November 2004, Butt filed a motion to eliminate his temporary spousal maintenance payments. The district court did not rule on this motion, so in May 2005, Butt filed a second motion to eliminate spousal maintenance. At the same time, Butt filed a demand for updated discovery responses. Schmidt opposed Butt’s motion to eliminate maintenance, stating that she was unemployed and had no income apart from child support and spousal maintenance. Schmidt did indicate that she recently enrolled in school to pursue a health unit coordinator degree.

On May 27, 2005, Butt deposed Schmidt. In response to an inquiry about her past employment, Schmidt stated:

In the past I’ve worked retail at Target, and I’ve done in-home daycare. I stayed home to raise my kids since they were all born, so I’ve done a lot of daycare. And then like I said, I’ve done Target, and I used to work at Sam’s Club years ago when I was pregnant with my oldest boy, but once I had him, we decided that I would be the one to stay home and take care of the children.

Schmidt also said that after high school she obtained a cosmetology license but never pursued a career in that field because she and Butt moved to California shortly after they got married. Schmidt stated that she did not currently have a job or any earned income. She stated that her last job was as a para-professional substitute at a Woodbury junior high school. Further, Schmidt indicated that she had recently taken out a student loan to take an education course to become a health unit coordinator. Schmidt planned to take part-time evening classes in July and said the course would last until September. When asked if she planned to work when she started school, Schmidt responded that “[ejventually, yes, I want to get a job,” but that she could not work at the time because she just had back surgery and was in a lot of pain. While Schmidt did not know the average salary of a health unit coordinator, she stated that a friend working in the field makes $13 per hour. According to the guardian ad litem’s report, Schmidt completed her course work and at some point during the dissolution proceedings was working part-time as a health unit coordinator.

On January 7, 2005, the parties entered into a stipulation concerning parenting time. The stipulation was incorporated into a court order in May 2005. The order stated that the parties would share legal custody of their three minor children and set out a detailed parenting schedule upon which the parties had agreed. The order further stated that the parenting time stipulation “shall be effective immediately and shall be incorporated into the final judgment and decree entered in this matter.” The stipulation did not address spousal maintenance or child support.

On August 3, 2005, the district court denied Butt’s November 2004 and May 2005 motions to eliminate temporary spousal maintenance. The court stated:

This matter is set for pre-trial on November 3, 2005, and a court trial bn December 1, 2005. The Court does not intend to repeatedly readdress issues raised by the temporary hearing pending pre-trial and trial. The court will therefore deny the Petitioner’s motion to terminate spousal maintenance.

The court also denied Butt’s motion for updated discovery.

On December 27, 2005, the parties entered into a Marital Termination Agreement where the parties stipulated to spousal maintenance. The agreement also incorporated the prior custody and parenting time stipulation. That same day, the district court issued a dissolution judgment and decree that incorporated the Marital Termination Agreement. The decree included the following findings: 1) Butt earns a gross monthly income of $8,839 and after allowable deductions, has a monthly net income of $5,633; 2) Butt earns a periodic bonus and received a bonus in the amount of $12,000 in 2004; and 3) Schmidt is not employed and has no retirement, 401k, or pension plan available to her.

The decree then set out the parties’ stipulations, as agreed upon in the Marital Termination Agreement. First, it set out the terms of custody and parenting time to which the parties previously stipulated. The spousal maintenance section of the decree ordered Butt to pay Schmidt $1,000 per month in maintenance for 42 months. The decree also provided that except for the $1,000 per month, both parties waive any claim to maintenance. In support of this waiver the parties made the following affirmations:

a. Each party is fully capable of self-support and is not dependent upon the other for additional support in the form of spousal maintenance;
b. Each [party] has made a full, complete, and current disclosure of all income and assets available to him/ her, and liabilities to which each is subject, so as to enable the other to adequately evaluate the reasonableness of this waiver;
c. Both parties agree that this waiver is fair and equitable, taking into account the foregoing factors, each party’s respective personal circumstances and the property division agreed upon herein; and
d.The parties’ agreement is supported by adequate consideration and was entered into after full financial disclosure to the other party.

The maintenance section concluded with the following language: “The Court is divested of jurisdiction over the issue of maintenance pursuant to Karon v. Karon, 435 N.W.2d 501 (Minn.1989).”

As to child support, the decree provided that “the parties [were] unable to agree on the basis (income) to be used or the percentage the children spend with each parent.” Thus, the decree ordered that “[e]ach attorney * * * prepare and submit to the court their respective position concerning child support and the method of collection.” The decree provided that the district court’s decision regarding child support, once made, would be incorporated into the decree.

After the district court issued the decree, Butt submitted a letter to the court regarding the calculation of child support. Butt asserted that his net monthly income for child support purposes is $4,633-his $5,633 net monthly income minus his $1,000 monthly spousal maintenance obligation. He asserted that because the parties have joint legal and physical custody of the children and Schmidt has 72.6% of the parenting time with the children, his guideline child support obligation is $1,177 per month.

Butt also asserted that the child support calculation should be offset by income that should be imputed to Schmidt. More particularly, Butt asserted that Schmidt failed to provide the district court with sufficient information regarding her earned income despite Butt’s repeated requests that she comply with his discovery requests. Therefore, according to Butt, when calculating Butt’s child support obligations the court should conclude that Schmidt is voluntarily unemployed under Minn.Stat. § 518.551, subd. 5b(d), (e) (2004), and impute employment income to Schmidt in addition to the maintenance Butt pays to Schmidt.

Schmidt submitted a written closing argument to the district court asserting that the child support award is a modification of the court’s prior temporary support order. Thus, Schmidt asserted that under the child support modification statute, MinmStat. § 518.64, subd. 2 (2004), child support should not be altered from the temporary award because no changes had occurred that merited modification.

Butt responded by asserting that the issue is not the modification of child support because the prior child support order was temporary. Thus, Butt argued that the support calculation is not subject to the modification statute and was meant to be reviewed de novo by the district court at trial. Butt also reiterated that Schmidt had not presented any evidence to explain why she was not working and that the district court should impute income to Schmidt because she bears the burden of showing why she is unemployed.

In March 2006, the district court issued an order regarding child support. In the order, the court stated that while the parties submitted arguments as to child support, they “submitted minimal evidence to support their respective positions.” The court then calculated Butt’s net monthly income as $4,683 per month, considering his net employment income minus his maintenance payments. Consistent with Butt’s proposed calculations, the court con-eluded that based on Butt’s earned income, his child support obligation is $1,177 per month. But the court declined to impute income to Schmidt for child support purposes. Recognizing that Schmidt is currently unemployed, the court nevertheless concluded that “based upon the scant evidence provided to the Court, [it] cannot find that [Schmidt] is voluntarily unemployed or underemployed.” Thus, the court ordered Butt to pay Schmidt the full $1,177 per month in child support.

Butt appealed to the court of appeals, arguing that the district court erred when it 1) failed to apply Butt’s child support obligations retroactively to the date the parties entered into a stipulation for joint custody; 2) declined to impute earned income to Schmidt when calculating Butt’s child support obligations; and 3) refused to consider Schmidt’s spousal maintenance award as income for the purpose of calculating child support obligations. Butt v. Schmidt, No. A06-1015, 2007 WL 2104366, at *1 (Minn.App. July 24, 2007). Schmidt did not submit a brief to the court of appeals.

The court of appeals, in an unpublished opinion, affirmed the district court on the issues of retroactive child support and imputation of earned income to Schmidt. Id. at *1-3. But the court of appeals held that the district court erred when it declined to consider Schmidt’s maintenance award as income when determining child support. Id. at *3-4. Accordingly, the court of appeals remanded to the district court. Id. at *4. The court of appeals also stated that on remand, the district court has discretion to make any adjustments to spousal maintenance that it deems equitable. Id.

Butt now appeals to our court. Schmidt did not file a supreme court brief. Because Butt prevailed in his argument to the court of appeals that the district court should have treated Schmidt’s maintenance award as income for purposes of child support calculations, Butt does not raise this issue on appeal. Butt has appealed the two remaining issues, asserting that the district court erred by failing to 1) impute income to Schmidt; and 2) retroactively apply the final child support calculation back to the date that the court ordered joint custody of the children. Butt also raises an additional claim in this appeal. Butt asserts that because both parties waived the right to future modification of spousal maintenance, the court of appeals erred when it stated that the district court, on remand, could modify the maintenance award.

I.

We first address Butt’s claim that the court of appeals erred when it gave the district court authority to modify spousal maintenance on remand. At the conclusion of its opinion, the court of appeals stated:

On remand, the district court shall have discretion to make any adjustment to the maintenance award deemed necessary to achieve an equitable result in this case. If the district court believes that altering the support or maintenance award requires additional information, the district court shall have discretion to reopen the record.

Butt, 2007 WL 2104366, at *4. Butt asserts that in their Marital Termination Agreement, he and Schmidt both waived their rights to modify spousal maintenance. Because the district court incorporated this waiver agreement into the final decree, Butt argues that the waiver divested the district court of further jurisdiction over the issue of spousal maintenance and thus the court of appeals erred in authorizing the district court to modify maintenance.

In Karon v. Karon, the parties to a dissolution proceeding executed a stipulation that was incorporated into the final decree. 435 N.W.2d 501, 501 (Minn.1989). After setting out the terms of spousal maintenance, the parties’ stipulation stated:

Except for the aforesaid maintenance, each party waives and is forever barred from receiving any spousal maintenance whatsoever from one another, and this court is divested from having any jurisdiction whatsoever to award temporary or permanent spousal maintenance to either of the parties.

Id. at 502. One of the parties later attempted to modify the spousal maintenance under the modification statute—Minn. Stat. § 518.64 (2006). Karon, 435 N.W.2d at 502. The district court granted the motion to modify and the court of appeals affirmed. Id. at 502-03. But we reversed. Id. at 504. In Karon, we recognized that section 518.64 allows a court to modify a maintenance award upon petition of a party. Id. at 503. We concluded, however, that when a district court incorporates into its dissolution order a stipulation by the parties as to maintenance, the order is a final decree with a preclusive effect. Id. Thus, if the court’s final decree includes such an express waiver precluding the right to any further maintenance, the court is divested of its jurisdiction over the maintenance issue because any later attempts to modify spousal maintenance are barred by issue preclusion. Id.

In 1989, the legislature added subdivision 5 to Minn.Stat. § 518.552. Act of May 25, 1989, eh. 248, § 7, 1989 Minn. Laws 834, 838 (codified at Minn.Stat. § 518.552, subd. 5). Consistent with our decision in Karon, subdivision 5 states:

The parties may expressly preclude or limit modification of maintenance through a stipulation, if the court makes specific findings that the stipulation is fair and equitable, is supported by consideration described in the findings, and that full disclosure of each party’s financial circumstances has occurred. The stipulation must be made a part of the judgment and decree.

Minn.Stat. § 518.552, subd. 5 (2006). In Loo v. Loo, which we decided after the enactment of subdivision 5, we reiterated the validity of Karon waivers and recognized the new limitations subdivision 5 placed on such waivers. 520 N.W.2d 740, 746 n. 6 (Minn.1994). But in Loo, we also made clear that for such a waiver to divest the district court of jurisdiction over the issue of spousal maintenance, the stipulation must include both a “contractual waiver of [the parties’] statutory right to move for modification of maintenance prior to its termination” and “express language divesting the court of jurisdiction to consider motions for modification of spousal maintenance.” Id. at 747; see also Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn.1996) (stating that section 518.551, subd. 5, requires that a waiver or limitation of maintenance be supported by consideration).

Four requirements must be met before a stipulation precluding or limiting maintenance modification divests the court of its jurisdiction over maintenance. These requirements are: 1) the stipulation must include a contractual waiver of the parties’ rights to modify maintenance; 2) the stipulation must expressly divest the district court of jurisdiction over maintenance, Loo, 520 N.W.2d at 745-46; 3) the stipulation must be incorporated into the final judgment and decree; and 4) the court must make “specific findings that the stipulation is fair and equitable, is supported by consideration described in the findings, and that full disclosure of each party’s financial circumstances has occurred,” Minn.Stat. § 518.552, subd. 5.

Here, the Marital Termination Agreement and the decree included the following two statements, similar to those in Karon, which constitute a contractual waiver of the parties’ rights to maintenance modification: 1) “[e]xcept for the award of $1,000 per month spousal maintenance for a period of forty-two months to [Schmidt], both parties waive any claim to spousal maintenance past, present and future;” and 2) “[i]t is the express intention of the parties that save for the award of 42 months of spousal maintenance to [Schmidt], neither party is awarded any spousal maintenance either past, present or future.” The decree also explicitly stated that “[t]he Court is divested of jurisdiction over the issue of maintenance pursuant to Karon v. Karon, 435 N.W.2d 501 (Minn.1989).” Additionally, it is not disputed that the stipulation was incorporated into the court’s final decree. Finally, affirmations concerning full and complete financial disclosure, the fairness of the waiver, and consideration were included in the Marital Termination Agreement to support the waiver. When these affirmations were accepted by the court and incorporated into the final decree, the court made the required findings under Minn.Stat. § 518.552, subd. 5. Because the four requirements of a maintenance waiver were met in this case, we conclude that the district court divested itself of jurisdiction over spousal maintenance. Therefore, we hold that the court of appeals erred when it authorized the district court to modify spousal maintenance on remand.

II.

Butt next argues that the district court should have imputed income to Schmidt for purposes of calculating child support because Schmidt was voluntarily unemployed under Minn.Stat. § 518.551, subd. 5b(d), (e) (2004). Schmidt admitted that she was unemployed at the time of trial; however, Butt argues that subdivision 5b(d) places the burden on Schmidt to prove that her unemployment is not voluntary. Butt argues that because Schmidt failed to provide sufficient information to the court regarding her employability, the court was required to impute income to Schmidt.

The district court found Schmidt was unemployed but declined to impute income to her because it found that it had insufficient information regarding Schmidt’s “attempts to secure employment, her employment history, education, and other appropriate factors.” The court of appeals held that the district court did not abuse its discretion by failing to impute income to Schmidt. Butt, 2007 WL 2104366, at *3. While the court of appeals agreed that under Minn.Stat. § 518.551, subd 5b(d), the burden to prove Schmidt’s employability was on her, the court concluded that Butt had “the initial burden of establishing that [Schmidt] is unemployed or underemployed.” Id. The court concluded that because Butt failed to meet his initial burden, the burden of proof never shifted to Schmidt. Id. The court also rejected Butt’s argument that there was sufficient evidence on the record to impute income to Schmidt. Id.

We have said that “[w]e will reverse a district court’s order regarding child support only if we are convinced that the district court abused its broad discretion by reaching a clearly erroneous conclusion that is against logic and the facts on record.” Putz v. Putz, 645 N.W.2d 343, 347 (Minn.2002) (citing Gully v. Gully, 599 N.W.2d 814, 820 (Minn.1999), and Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn.1986)). But when we are interpreting a statute, the standard of review is de novo. State v. Mauer, 741 N.W.2d 107, 111 (Minn.2007).

Subdivision 5b(d) of Minn.Stat. § 518.551 describes what a court is required to do when a parent is found to be voluntarily unemployed or underemployed for the purposes of child support. The statute states:

If the court finds that a parent is voluntarily unemployed or underemployed * * *, support shall be calculated based on a determination of imputed income. A parent is not considered voluntarily unemployed or underemployed upon a showing by the parent that the unemployment or underemployment: (1) is temporary and will ultimately lead to an increase in income; or (2) represents a bona fide career change that outweighs the adverse effect of that parent’s diminished income on the child. Imputed income means the estimated earning ability of a parent based on the parent’s prior earnings history, education, and job skills, and on availability of jobs within the community for an individual with the parent’s qualifications.

Minn.Stat. § 518.551, subd. 5b(d).

As an initial matter, the district court declined to impute income to Schmidt under subdivision 5b(d) because it concluded that there was insufficient information in the record to determine whether Schmidt was voluntarily unemployed. But in its order for temporary relief, the court found that Schmidt was unemployed and had no significant work history but was “capable of finding suitable employment to become partially self-supporting.” In the final decree, the court incorporated the Marital Termination Agreement that included the parties’ affirmations that “[e]ach party is fully capable of self-support and is not dependent on the other for additional support in the form of spousal maintenance.” Based on these findings, it appears that the court did conclude, and the parties agreed, that Schmidt was capable of finding and holding employment.

Further, while Schmidt provided minimal evidence to the district court about her income and employability, Butt and the guardian ad litem provided significant evidence about Schmidt’s employment, education, and earnings history. There was evidence that Schmidt was working at different times during the dissolution proceeding and that she had recently earned a health unit coordinator degree and at some point during the dissolution proceedings had used the degree to obtain employment. The record also includes some information about Schmidt’s work history. Based on the record, we question whether the court properly concluded that it had insufficient information to determine whether Schmidt was voluntarily unemployed.

Nevertheless, because the district court failed to make a finding regarding whether Schmidt was voluntarily unemployed, the question before us on appeal is whether the court’s believed lack of information was a proper basis for it to decline to impute income to Schmidt. While the language of subdivision 5b(d) indicates that a parent has the burden of proving that her voluntary unemployment or underemployment is justified, it does not indicate which party has the initial burden of proving the parent in question is voluntarily unemployed or underemployed. Instead, the section simply states that if “the court finds the parent is voluntarily unemployed or underemployed” then the court “shall” impute income to that parent. MinmStat. § 518.551, subd. 5b(d) (emphasis added).

Two other paragraphs within subdivision 5b, however, shed some light on who bears the burden to prove that a party is voluntarily unemployed or underemployed. First, paragraph (a) requires that each party to a dissolution proceeding “timely serve and file documentation of earnings and income,” including federal tax returns and pay stubs for at least the prior 3 months. The language of paragraph (a) explicitly places the burden on each party to produce his or her own income information.

Second, paragraph (e) provides that “[i]f there is insufficient information to determine actual income or to impute income pursuant to paragraph (d), the court may calculate support based on full-time employment of 40 hours per week at 150% of [minimum wage].” (emphasis added). In essence, paragraph (e) provides a mechanism for the district court to calculate how much income to attribute to a party if the court lacks enough information to determine that spouse’s actual income or to impute income to that spouse as outlined in paragraph (d). The latter part of paragraph (e), states “it shall be presumed that the parent is not voluntarily unemployed or underemployed” if that party receives public assistance or is mentally or physically incapacitated. Minn.Stat. § 518.551, subd. 5b(e) (emphasis added). Absent such evidence, or other evidence provided by the party to show his or her income or a valid reason why the party has no income, it appears that the statute directs the court to presume that each party is capable of full-time employment, which pays at least 150% of the minimum wage. Minn. Stat. § 518.551, subd. 5b(e).

Considering paragraphs (a), (d), and (e) together, we conclude that Butt is correct in asserting that because Schmidt failed to provide sufficient income information to the district court, the court was required to calculate Schmidt’s income based on paragraph (e). Paragraph (a) explicitly places the burden on each party to produce his or her own income information and if a party does so, that information becomes the basis for the court’s findings. Under paragraph (d), the court imputes income to a party based on the party’s prior earnings, education, and job skills if the court finds that the party is voluntarily unemployed or underemployed. But if the court cannot determine actual income or impute income because it lacks sufficient information, paragraph (e) directs the court to calculate income for purposes of child support based on 150% minimum wage. Further, paragraph (e) carves out an exception for when the court should not presume that a party is voluntarily unemployed or underemployed. Given the language of paragraphs (a), (d), and (e), we conclude that paragraph (e), in directing the court to calculate a party’s income at 150% of the minimum wage when the court lacks sufficient information “to [otherwise] determine actual income or to impute income,” implicitly requires the court to presume that a party who has not provided the court with sufficient income information is voluntarily unemployed or underemployed and to attribute income to that party.

Our interpretation of subdivision 5b is consistent with our procedural principles. For example, we have held that a party in exclusive possession of evidence has the burden to produce that evidence. See Kmetz v. Johnson, 261 Minn. 395, 401-03, 113 N.W.2d 96, 100-01 (1962). In a marital dissolution proceeding, each spouse is in the better position to produce his or her own work history, education background, and earnings history. Indeed, one spouse’s knowledge of the other’s income, education, and work history is likely to be incomplete. Moreover, we have stated that if a party is in exclusive possession of evidence and that party fails to produce the evidence, an unfavorable inference may be drawn about that party as to the relevant issue. Kmetz, 261 Minn. at 401-02, 113 N.W.2d at 100-01. These procedural principles are furthered by interpreting Minn.Stat. § 518.551, subd. 5b, as requiring the district court to attribute income to a party when that party has failed to provide the required income information under paragraph (a). This interpretation also provides incentives for parties in a dissolution proceeding to comply with discovery rules and to report income and employment information accurately, which is particularly important when the support of children is at stake.

In this case, the district court declined to impute income to Schmidt because it found that there was insufficient information regarding Schmidt’s “attempts to secure employment, her employment history, education, and other appropriate factors.” If we accept the court’s belief that it lacked sufficient information concerning Schmidt’s income, it should have attributed income to Schmidt, based on evidence of Schmidt’s education and work history or at 150% of the minimum wage under Minn. Stat. § 518.551, subd. 5b(d), (e). This is particularly true in this case because during the proceedings, Butt made multiple attempts to compel Schmidt to produce evidence regarding her employment. Butt first requested that the court compel Schmidt to answer Butt’s interrogatories, which Schmidt eventually answered, albeit incompletely. According to the record, Schmidt submitted no further information or documentation regarding her employment after she answered the interrogatories. Nor did she provide any information or evidence to the court that she was unemployed because she was the primary caretaker of the minor children, or because she was physically incapable of working. At least two more times, Butt requested that the court compel Schmidt to comply with his discovery requests, but the court denied his motions.

Additionally, Butt attempted to provide the district court with sufficient information regarding Schmidt’s employment history. In his affidavit supporting his motion for temporary relief, Butt listed what he knew of Schmidt’s employment history. He also asked Schmidt about her employment history and education at her deposition, which included extensive questioning about Schmidt’s medical problems and drug abuse history. Despite Butt’s attempts to provide the court with information about Schmidt’s income and employment, the court concluded that it lacked sufficient information regarding Schmidt’s employability. Given this finding, the court should have attributed income of at least 150% of the minimum wage to Schmidt based on Minn.Stat. § 518.551, subd. 5b(e), because it was Schmidt’s burden under subdivision 5b(a) to provide that information.

Because we conclude that the district court failed to follow the proper procedures regarding Schmidt’s income, we hold that the court abused its discretion in not attributing income to Schmidt for purposes of computing child support. We therefore remand to the district court the issue of imputing income to Schmidt under MinmStat. § 518.551, subd. 5b. Because it may not have been clear to the parties that Schmidt bore the burden to provide her income information to the district court, on remand the district court may, at its discretion, give Schmidt the opportunity to provide income information. But we emphasize that if the court finds it lacks sufficient information about Schmidt’s income, work history, education, and reasons for being unemployed that may excuse her from a finding that she is voluntarily unemployed under Minn.Stat. § 518.551, subd. 5b(d), the court should impute income to Schmidt based on subdivision 5b(d) and (e).

III.

Butt’s final argument concerns the district court’s failure to apply his child support obligation retroactively. In August 2004, the court ordered Butt to pay temporary child support in the amount of $2,358 per month based on Minn.Stat. § 518.551 (2004). This award was based on Schmidt’s unemployed status, Butt’s income, and the court awarding Schmidt temporary sole physical custody of the minor children. In January 2005, the parties stipulated to a parenting plan that gave the parties joint physical and legal custody of the children and divided parenting time — 27.4% to Butt and 72.6% to Schmidt. Based on the stipulated custody and parenting time schedule and new evidence regarding Butt’s income, the court ordered that Butt pay $1,177 per month in permanent child support.

Butt argues that the district court erred when it failed to compute permanent child support “dating back to the joint [custody] arrangement” agreed upon by the parties in January 2005. Although the basis of Butt’s argument is not clear, he asserts that the court intended to review Butt’s child support obligations de novo at trial because in its temporary order, the court stated that it would review the issues of Butt’s income and Schmidt’s employment status de novo at trial. Butt further argues that a de novo review means that when the court calculated Butt’s permanent child support obligation at trial, it should have retroactively applied that calculation to the time that the parties agreed to joint custody.

The court of appeals held that Butt waived this issue because he failed to raise it in the district court. Butt v. Schmidt, 2007 WL 2104366, at *1 (Minn.App. July 24, 2007). The court of appeals then held that even if it was not waived, the district court did not abuse its discretion because at the time the custody agreement was entered into, the temporary child support order was in effect and Butt did not move to modify that order at any time before the entry of the final decree. Id.

We have stated that “a reviewing court must limit itself to a consideration of only those issues which the record shows were, or had to be, presented and considered by the trial court in deciding the matter before it.” Thompson v. Barnes, 294 Minn. 528, 536, 200 N.W.2d 921, 927 (1972); see also Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988). As the court of appeals observed, Butt did not object to the temporary child support order at any time after it was issued. While Butt claims that he did, in fact, move to modify temporary child support, the record indicates that in the motions to which Butt refers, he moved only to modify temporary spousal maintenance and made no mention of his child support obligations. Moreover, Butt did not make an argument to the district court that the permanent child support order should apply retroactively. Even when Butt petitioned the district court for reconsideration of the permanent child support award, arguing that the court should have imputed income to Schmidt, Butt failed to raise his retroactive application argument. Because Butt failed to raise the issue of retroactive child support, whether temporary or permanent, at any time during his dissolution proceedings, we hold that the court of appeals was correct in holding that Butt waived this claim.

Nevertheless, even if Butt had not waived the issue of retroactive child support, we agree with the court of appeals’ analysis that the claim lacks merit. As stated above, we will reverse a child support order only if we conclude “that the district court abused its discretion by reaching a clearly erroneous conclusion that is against logic and the facts on record.” Putz, 645 N.W.2d at 347. At the time of the final decree, Minn.Stat. § 518.551 (2004) governed permanent child support orders. This section does not provide that the district court, when issuing a final child support order, can make the order retroactive.

While Minn.Stat. § 518.551 does not provide for retroactive child support orders, Minn.Stat. § 518.64 (2004) provides that the district court can make retroactive a modification of a child support order, whether the order is temporary or permanent. Here, the initial custody order was a temporary custody order, which is governed by Minn.Stat. § 518.131 (2004). Section 518.131, subd. 1(c), permits a court to grant a temporary child support order “pending the final disposition of the proceeding.” Temporary child support orders can be modified in the same manner as permanent support orders, see Minn.Stat. § 518.64, but a temporary child support order only continues “in full force and effect until the earlier of its amendment or vacation, dismissal of the main action or entry of a final decree of dissolution or legal separation,” Minn.Stat. § 518.131, subd. 5 (2004). Thus, Butt could have moved to amend or vacate the temporary order anytime before the court entered its final decree, and if he had done so, the modification statute would have allowed for retroactive application. But Minn.Stat. § 518.64, subd. 2(d) (2004), limits the period of retroactive application. More particularly, a modification of child support can be made retroactive “only with respect to any period during which the petitioning party has pending a motion for modification but only from the date of service of notice of the motion on the responding party.” Id.

Butt made no motions to modify child support at any time before the final decree was issued. Moreover, the child support ordered in the final decree was a permanent order issued under section 518.551. Thus, the final decree was not a modification of the temporary order; temporary orders and permanent orders are distinct and governed by different statutes. Once the final decree was issued, the temporary order was no longer in effect, Minn. Stat. § 518.131, subd. 5, so the court could no longer modify the temporary order. Because a permanent child support order cannot be applied retroactively and is not a modification of a temporary order, and because Butt failed to move to modify his temporary child support obligation at any time before the final decree was issued, we conclude that even if Butt did not waive his retroactive child support claim, the claim has no merit. We therefore hold that the district court did not err when it failed to apply Butt’s child support obligation retroactively to the time that he and Schmidt agreed to joint physical custody of their minor children.

Affirmed in part, reversed in part, and remanded.

DIETZEN, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . Based on section 518.551, subd. 5b(d), (e), Butt proposed three methods of calculating income to impute to Schmidt: 1) $13 per hour based on Schmidt’s assertion in her deposition that her friend earns that wage as a health unit coordinator; 2) $11 per hour if the court wanted to give Schmidt "the benefit of the doubt of what she could be making” as a health unit coordinator; and 3) $9.38 per hour, which is 150% of minimum wage.

      . After the district court entered its final judgment, Butt petitioned the court to reconsider his request to offset his child support obligations with income the court should impute to Schmidt. The court declined to reconsider the child support issue.

      . While this court has made clear that because of the discovery tools in place, a party cannot request that an adverse inference be drawn if the party fails to attempt to obtain the evidence, Kmetz, 261 Minn. at 401-02, 113 N.W.2d at 100-01, here it appears that Butt did in fact make attempts to compel Schmidt to produce evidence regarding her employment but the court denied his motions to compel discovery. Additionally, Butt attempted to provide the court with information regarding Schmidt's employment history.

      . Schmidt’s answers regarding income, employment, and education were as follows. In response to a request for her work history, Schmidt stated that she attached a resume to her answers. No resume could be found in the appellate file. Schmidt also stated that she is not currently working because of medical problems. In response to an interrogatory concerning Schmidt's educational background, she again referred to her resume.

      . We note that under Minn.Stat. § 518.551, subd. 5b(e), a parent is not voluntarily unemployed or underemployed if that parent is physically or mentally incapacitated. Further, if a parent has been a homemaker or the primary caretaker of the children during the marriage and is working the same hours at the time of dissolution that the parent worked throughout the marriage, courts should recognize the diminished earning capacity of such a parent and should not consider the parent voluntarily unemployed or underemployed when there is no evidence that the parent is purposely reducing income.

      . Butt’s claim that a de novo review of child support at trial requires retroactive application of the child support order also lacks merit. Black’s Law Dictionary defines “appeal de novo ”, also termed “de novo review ” as "[a]n appeal in which the appellate court uses the trial court’s record but reviews the evidence and law without deference to the trial court’s ruling.” Black’s Law Dictionary, 106 (8th ed.2004). There is no language in this definition that indicates a de novo review requires a retroactive application of an order, only a clean slate upon which the new order will be granted.


source: Caselaw Access Project

author: KLAPHAKE, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Rodney J. JEDLICKA, Appellant.
    No. A07-0193.
    Court of Appeals of Minnesota.
    April 15, 2008.

      Lori Swanson, Attorney General, St. Paul, MN, and Michael O. Freeman, Hen-nepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, MN, for respondent.
    Lawrence Hammerling, Chief Appellate Public Defender, Frank R. Gallo, Jr., Assistant State Public Defender, St. Paul, MN, for appellant.
    Considered and decided by HALBROOKS, Presiding Judge; KLAPHAKE, Judge; and SCHELLHAS, Judge.
   OPINION

KLAPHAKE, Judge.

Appellant Rodney Jedlicka was notified by the district court at sentencing that he was subject to the predatory offender registration requirement of Minn.Stat. § 243.166 (2002) after he committed first-degree burglary in 2003 with criminal sexual conduct as its goal. An amendment to Minn.Stat. § 243.166 (2006) excluded appellant’s conduct from the predatory offender registration requirement before he was actually required to register upon release from prison. He claims that the statutory amendment should apply retroactively and that he should be relieved of the registration obligation. The postcon-viction court ruled that the amended predatory offender statute could not be applied retroactively. We reverse and modify appellant’s sentencing order to exclude the predatory offender registration notice.

FACTS

On April 24, 2003, appellant Rodney Jedlicka entered an occupied home in Brooklyn Park and took money from a purse. At his plea hearing, he entered a straight plea to first-degree burglary, in violation of Minn.Stat. § 609.582, subd. 1(a) (2002). For purposes of seeking a downward dispositional departure at sentencing, appellant admitted that he had a long history of voyeurism and that the burglary was prompted by his sexual impulses: he admitted that he entered the residence in order to get a better view of its occupant sunbathing on the porch.

Appellant’s admission that the offense was motivated by his sexual impulses finds further support in a presentence investigation, a psychological evaluation, and a sex offender evaluation. The presentenee investigation report outlines a criminal history that demonstrates a pattern of similar conduct, including a 1990 felony burglary conviction where appellant entered a private home to view through a window a woman sunbathing outside, and three misdemeanor offenses, two involving interference with privacy, and one involving obscene/harassing conduct.

At sentencing, the district court imposed a 39-month executed sentence and found that appellant was required to register as a predatory offender for ten years under Minn.Stat. § 243.166 (2002). After noting appellant’s criminal history and other facts pertinent to his history of voyeurism, the court found that appellant’s motivation for the current offense was not only to commit a residential burglary, but also to achieve sexual gratification, stating, “You didn’t touch her I grant you that, but it is still a sex offensef,] and so I’m sentencing you as a sex offender.” The court notified appellant that he would “have to register as a sex offender” and “give your DNA.”

Appellant did not file a direct appeal of his conviction, but after he was released from prison on April 13, 2006, he petitioned the district court for a postconviction sentence clarification and correction. The motion was premised in part on a 2005 amendment to Minn.Stat. § 243.166, under which appellant’s burglary offense would not require registration as a predatory offender. The postconviction court denied the petition, concluding that the underlying facts supported appellant’s predatory offender designation and that the 2005 amendment to the predatory offender statute could not be applied retroactively.

ISSUES

1. Does Minn.Stat. § 243.166 (2006) apply retroactively to relieve appellant from the obligation to register as a predatory offender?

2. Does the district court have the authority to modify its order requiring appellant to register as a predatory offender?

ANALYSIS

“On review of postconviction decisions, we extend a broad review of both questions of law and fact.” State v. Ferguson, 742 N.W.2d 651, 659 (Minn.2007); see White v. State, 711 N.W.2d 106, 109 (Minn.2006) (“[o]n review of a postconviction decision, this court determines whether there is sufficient evidence to support the post-conviction court’s findings”). This court will reverse a postconviction decision only for an abuse of discretion, and while we give de novo review to its legal determinations, we will reverse its factual findings only if clearly erroneous. Schleicher v. State, 718 N.W.2d 440, 445 (Minn.2006). The district court “abuses its discretion if it misinterprets or misapplies the law.” Johnson v. State, 733 N.W.2d 834, 836 (Minn.App.2007), review denied (Minn. Sept. 18, 2007).

I.

Appellant challenges his designation as a predatory offender, claiming that the district court lacked authority to make the designation; his underlying conduct would not obligate him to register under current law; and only the current registration statute should apply to him. Based on the predatory offender statute in existence at the time of appellant’s offense, we conclude that the district court had the authority to notify appellant that he should register as a predatory offender, but we also conclude that the current version of the statute, which would not require his registration, applies retroactively to him.

Appellant first contends that the district court improperly included the registration requirement as part of his sentence and that the determination that he is a person who should register as a predatory offender could be made only by the Commissioner of Corrections, because the registration requirement is regulatory rather than criminal. At the time of his offense, Minn. Stat § 243.166 (2002) generally defined the conduct that mandated registration as a predatory offender by reference to the underlying offense, but subdivision 1(a)(3) also allowed the district court to determine that a person should register if “the court found on its own motion or that of the prosecutor that the crime was part of a predatory pattern of behavior that had criminal sexual conduct as its goal[.]” This language is contrary to appellant’s claim that “[t]here is no ... statutory provision in section 243.166 ... that allows a district court any other authority over the predatory offender mechanism.” Thus, under the law in effect at the time of appellant’s offense, the district court had authority to determine whether appellant qualified for registration as a predatory offender. The court also had the duty to notify appellant that he was required to register. Minn.Stat. § 243.166, subd. 2 (“When a person who is required to register under subdivision 1, paragraph (a), is sentenced ... the court shall tell the person of the duty to register”); see Kaiser v. State, 641 N.W.2d 900, 907 (Minn.2002) (noting that “notice [of registration requirement] can be provided by an employee of the Department of Corrections, an executive branch agency, if the court fails to do so”).

Appellant also contends that the district court improperly included the registration requirement as part of his sentence. See id. (ruling predatory offender registration requirement is not part of sentencing). The district court stated that it was “sentencing [appellant] as a sex offender,” but the court’s sentencing order did no more than include notice of the registration requirement, as the court was required to do. See Minn.Stat. § 243.166, subd. 2. The postconviction court, with the same judge presiding as the sentencing judge, stated that its initial order requiring appellant to register “will stand as ordered in my original sentence.” Under these circumstances, we conclude that the registration requirement was not a part of appellant’s sentence but was properly included in the sentencing order. The district court’s action was in conformance with the statute, which states that the district court must give notice of the registration requirement when the offender “is sen-teneed[.]” Id.

Appellant next contends that the amended version of Minn.Stat. § 243.166 should be applied retroactively to relieve him of the duty to register as a predatory offender. Appellant’s burglary conviction would not support designation as a predatory offender under the current statute, which now sets forth with particularity each type of offense to which the registration requirement applies. Minn.Stat. § 243.166, subd. lb (2006). Further, the current statute no longer allows a district court the discretion to determine “upon its own motion” that an offender should register when the offender commits an offense that does not specifically qualify for registration. Id. These statutes became effective on June 3, 2005. See 2005 Minn. Laws ch. 136, art. 3, § 8.

The question then becomes whether the amended statute should be applied retroactively to appellant. Case law has upheld retroactive application of amendments to section 243.166. In State v. Lilleskov, 658 N.W.2d 904, 907-08 (Minn.App.2003), this court applied the statute retroactively to defendants who had committed qualifying juvenile offenses before the effective date of a 1994 amendment that required the registration of juvenile sex offenders. In discussing the retroactive application of the amendment, this court stated that, by its operation, the statute applies retroactively because it requires registration upon an offender’s release into the community “without regard to the date of his conviction.” Id. The court noted that similar laws “adopted around the country have been applied retroactively, either through explicit language or by judicial interpretation.” Id. The court further noted that the “duty to register based on a status that is triggered by an earlier act, can hardly be understood except as applied retroactively.” Id.; see State v. Manning, 532 N.W.2d 244, 247-48 (Minn.App.1995) (allowing retroactive application of predatory offender statute to those convicted of sex offenses prior to statute’s effective date), review denied (Minn. July 20,1995).

Because case law has approved retroactive application of amendments to this statute in other contexts, we are persuaded that the determination of those who are required to register should be defined by the 2005 amendment rather than by the earlier statutory language. This application of section 243.166 allows the legislature to enlarge or reduce the group of offender registrants as necessary to effectuate the purpose of the statute, “to create an offender registry to assist in law enforcement investigations.” Kaiser, 641 N.W.2d at 905. We therefore conclude that Minn.Stat. § 243.166 (2006) applies retroactively to relieve appellant from the obligation to register as a predatory offender.

II.

Respondent claims that this matter may not be heard by this court because appellant improperly filed a postconviction petition to correct his sentence rather than a declaratory action against the Commissioner of Corrections to challenge the statutory registration requirement under MinmStat. § 243.166. Appellant was sentenced on February 27, 2004, and his sentence became final 90 days after. See Minn. R.Crim. P. 28.05. Appellant did not challenge the district court order requiring registration until June 20, 2006, after his release from prison.

Regarding the timeliness of the petition, appellate courts have heard otherwise untimely postconviction petitions, under various circumstances, when to do so is in the interests of justice. In James v. State, 699 N.W.2d 723, 727-28 (Minn.2005), the supreme court considered the merits of a postconvietion petition to challenge a plea where the petition was filed 39 months after conviction, but the petitioner had not been informed of a statutorily-required term of conditional release at the time of the plea. In its analysis, the James court enumerated other cases in which delays of up to 33 years existed but did not preclude relief, stating that although “timeliness is a factor in evaluating plea withdrawal petitions, we have elected in the great majority of cases to substantively review petitions on the merits — regardless of their timeliness — if the issues raised have not previously received substantive review.” Id. at 731. Appellant did not file a direct appeal because at the time of his designation as a predatory offender, he had no legal basis for challenging the designation. It would be illogical to require appellant to challenge the district court’s decision to give him notice of the registration requirement at the time of his designation as a predatory offender when the amendment to Minn.Stat. § 243.166 that retroactively relieved him of the registration requirement did not come into effect until after he was sentenced but before he was subject to actual registration upon release from prison.

Respondent also argues that even if the petition is construed as timely, the offender registration requirement was not a part of appellant’s sentence and is therefore not appealable as a sentencing issue. It is well established in Minnesota that the requirement to register as a predatory offender is not punitive or a sentencing issue, but rather a civil and regulatory matter, the purpose of which is to “increase public safety by requiring a specific class of offenders to provide information to law enforcement authorities to assist in keeping track of them.” Kaiser, 641 N.W.2d at 906. But by terms of the 2002 statute, the legislature allowed the district courts to give predatory offenders notice of the registration requirement at the time of sentencing. Minn.Stat. § 243.166, subd. 1(3) (2002). Here, the order for registration was a part of the sentencing order, and it is from this order that the appeal must be taken.

Respondent further argues that this matter is exclusively one for the Commissioner of Corrections, because the district court has no current statutory authority to determine whether appellant is subject to predatory offender registration and thus may not modify its original order requiring appellant to register. Appellant counters that the Commissioner of Corrections lacks authority to modify a district court order. Unfortunately, this case presents a tangled and peculiar procedural posture, the subject of which has not been addressed in Minnesota case law. We are persuaded by the fundamental principle that an order issued by a district court must generally be reviewable by the district court. See Minn. R. Civ. P. 60.02 (allowing the district court to grant a party relief from an order or grant other relief as may be just for “any ... reason justifying relief from operation of the [order]”). Thus, we conclude that the district court had the authority to address a challenge to its order because it issued the original order containing the provision that gave appellant notice that he was required to register as a predatory offender.

DECISION

We reverse the district court’s postcon-viction decision and modify appellant’s sentencing order to exclude the requirement that he register as a predatory offender.

Reversed.

      . Appellant challenges the district court’s findings supporting the registration order. Minn.Stat. § 243.166, subd. (3) (2002), mandates registration as a predatory offender if the court finds "that the crime was part of a predatory pattern of behavior that had criminal sexual conduct as its goal[.]” The district court found that appellant’s conduct was motivated by “a predatory pattern of behavior that had sexual conduct as its goal.” While the district court's registration determination did not track the exact language of Minn.Stat. § 243.166, subd. (3), it relied on appellant’s prior behavior, the details of the current offense, and appellant’s criminal intent. The court found that the crime was committed for sexual gratification and that it was a sex crime. The record supports these findings, and, contrary to appellant's claim, we conclude that these findings are sufficient.

      . In Kaiser v. State, 641 N.W.2d 900, 902 (Minn.2002), the supreme court determined whether a postconviction petitioner could claim lack of notice of the registration requirement as a basis for withdrawal of a guilty plea. But a Minnesota appellate court has only considered a direct challenge to the registration requirement after it was first raised to the Department of Corrections. Boutin v. LaFleur, 591 N.W.2d 711, 714 (Minn.1999) (addressing predatory offender registration requirement in appeal brought by released prisoner seeking declaratory judgment against Commissioner of Corrections to enjoin commissioner from requiring him to register).

      . Respondent moves to strike any references in appellant’s brief to "determinations and actions of the Department of Corrections,” including the assignment of a corrections agent to his case, as outside the record. Appellant’s brief states that a corrections agent was assigned to his case, but he does not provide the specific date of assignment. We strike appellant's reference to any facts regarding actions of the Department of Corrections that are not part of the district court record. See Minn R. Civ.App. P. 110.01 (defining composition of record on appeal as "papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any”).


author: PETERSON, Judge.

text:
    Michelle KUNZA, Appellant v. ST. MARY’S REGIONAL HEALTH CENTER, Respondent, Dr. Wade Wernecke, individually, and as an employee of St. Mary’s Regional Health Center, Respondent.
    No. A07-0360.
    Court of Appeals of Minnesota.
    April 22, 2008.

      Jessica Jean Clay, James H. Raster, Adam A. Gillette, Nichols Raster & Anderson, PLLP, Minneapolis, MN, for appellant.
    Joseph J. Roby, Jr., Jessica L. Durbin, Johnson, Rillen & Seiler, P.A., Duluth, MN, for respondent St. Mary’s Regional Health Center.
    Daniel J. Ballintine, Larkin, Hoffman, Daly & Lindgren, Ltd., Minneapolis, MN, for respondent Dr. Wade Wernecke.
    Considered and decided by TOUSSAINT, Chief Judge; PETERSON, Judge; and CRIPPEN, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

PETERSON, Judge.

Appellant agreed to refrain from initiating a lawsuit asserting employment-related claims against respondents for a limited time period. Before that time period expired, appellant began this action against respondents, alleging claims covered by the agreement. Appellant voluntarily dismissed some of her claims, and, based on appellant’s initiation of this lawsuit during the time period when she agreed not to bring suit, the district court granted summary judgment for respondents dismissing the remaining claims. Respondent Wade Wernecke requested attorney fees, and the district court denied the request. We reverse the summary judgment dismissing the remaining claims and remand for further proceedings, affirm the denial of attorney fees, and deny respondents’ motion to strike.

FACTS

Appellant Michelle Runza was employed as a ward clerk in the emergency-services department at respondent St. Mary’s Regional Health Center. Respondent Wade Wernecke was employed by St. Mary’s as an emergency-room physician. On June 28, 2004, appellant reported to the emergency-services-department manager that, for more than two years, she had been sexually harassed and subjected to other offensive and inappropriate behavior by Wernecke. Appellant repeatedly requested that she be transferred because she was being retaliated against by Wernecke and other employees. St. Mary’s refused appellant’s requests, and appellant resigned on August 19, 2004.

The parties entered into settlement negotiations in an effort to avoid litigation, and, to give them time to negotiate, the parties executed an agreement to toll the statute of limitations. Under the agreement, appellant promised not to sue and file a charge during the term of the tolling agreement, and all parties agreed that any party may cancel the tolling agreement upon ten days’ notice. When negotiations broke down, St. Mary’s and Wernecke wrote letters to appellant providing notice of cancellation of the tolling agreement. Appellant’s counsel received both letters on the same day, and less than ten days later, appellant served the summons and complaint in this action. Both respondents raised a contractual defense under the tolling agreement in their separate answers to appellant’s complaint, as amended, and in their answers to interrogatories.

After the parties proceeded through discovery, respondents moved for summary judgment under the tolling agreement and on the merits. Appellant voluntarily dismissed her common law claims for breach of contract, defamation, assault, and intentional and negligent infliction of emotional distress and the claims that she had asserted against Wernecke under the Minnesota Human Rights Act (MHRA).

The district court granted summary judgment for respondents on appellant’s remaining claims because appellant brought her action during the time period when she agreed not to initiate an action. Without addressing the merits of the remaining claims, the district court ordered that the claims that appellant voluntarily dismissed be dismissed with prejudice and that the remaining causes of action be dismissed without prejudice. Judgment was entered for respondents.

The district court denied appellant’s request for leave to move for reconsideration of the summary judgment order. Both respondents sought costs and disbursements, and Wernecke also sought attorney fees. The district court granted respondents costs and disbursements and denied Wernecke attorney fees. This appeal followed.

Respondents moved to strike portions of appellant’s brief, arguing that she raised new issues for the first time on appeal. This court deferred the motion to strike to the panel deciding the case on the merits.

ISSUES

I. Should respondents’ motion to strike portions of appellant’s brief be granted?

II. Did the district court err in dismissing appellant’s remaining claims because appellant brought her action during the time period when she agreed not to initiate an action?

III.Did the district court err in denying attorney fees to Wernecke?

ANALYSIS

I.

Respondents move to strike from appellant’s brief her arguments that (1) even if she breached the tolling agreement, her breach directly resulted from respondents’ initial breach of the agreement, and respondents should not be permitted to benefit from their own breach; (2) specific performance is a disfavored remedy for breach of contract; (3) she substantially performed her obligations under the tolling agreement, and dismissal of her suit for any alleged minimal nonperformance is a drastic result; and (4) by participating in the lawsuit, respondents waived or abandoned any claim that filing the suit breached the tolling agreement. Respondents contend that appellant did not raise these issues before the district court.

A reviewing court generally may consider only those issues that the record shows were presented to and considered by the district court in deciding the matter before it. Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988). A party may not obtain review by raising the same general issue litigated below but under a different theory. Id. (citing Pomush v. McGroarty, 285 N.W.2d 91, 93 (Minn.1979) (holding appellant cannot raise new theory of recovery on appeal); Security Bank of Pine Island v. Holst, 298 Minn. 563, 564, 215 N.W.2d 61, 62 (1974) (holding that a party cannot shift its position on appeal)). But there is

a “well-established” exception to the general rule [that a party may not raise an issue on appeal that the party did not preserve for appeal]: [A]n appellate court may base its decision upon a theory not presented to or considered by the trial court where the question raised for the first time on appeal is plainly decisive of the entire controversy on its merits, and where, as in [cases] involving undisputed facts, there is no possible advantage or disadvantage to either party in not having had a prior ruling by the trial court on the question. Factors favoring review include: the issue is a novel legal issue of first impression; the issue was raised prominently in briefing; the issue was “implicit in” or “closely akin to” the arguments below; and the issue is not dependent on any new or controverted facts.

Watson v. United Serve. Auto. Ass’n, 566 N.W.2d 683, 687-88 (Minn.1997) (emphasis omitted) (quotation and citation omitted). See also Jacobson v. $55,900, 728 N.W.2d 510, 523 (Minn.2007) (holding an appellant may refíne an argument made to the district court as long as the argument can be evaluated on the facts already in the record.)

In arguing that specific performance is a disfavored remedy for breach of contract, appellant contends that the district court chose a remedy that is especially harsh and unjust when there are other remedies available. Appellant’s argument that she substantially performed her obligations under the tolling agreement also emphasizes that dismissal of her suit for allegedly bringing the suit only a few days early is a drastic result for minimal nonperformance. And appellant’s argument that by participating in the lawsuit, respondents waived or abandoned any claim that filing the suit breached the tolling agreement, illustrates the harshness of dismissal as a remedy for an alleged breach that had a negligible impact on respondents’ ability to participate in the underlying lawsuit.

All of these arguments relate to the question whether dismissal of an underlying lawsuit is an available remedy when the plaintiff in the underlying suit agreed to refrain from bringing the suit for a limited period of time but then brought the suit before the limited time period expired. This is the central issue arising from the dismissal of appellant’s suit, and if dismissal is not an available remedy, this issue is plainly decisive of the appeal and neither party has had an advantage or disadvantage on appeal because the district court dismissed appellant’s suit without first explicitly analyzing and deciding whether dismissal is an available remedy.

Applying the factors identified in Watson, we conclude that (a) whether dismissal is an available remedy for breach of an agreement to refrain from bringing suit for a limited period of time is an issue of first impression in Minnesota; (b) based on available authority, the parties have asserted opposing arguments on appeal that dismissal is, or should not be, an available remedy; and (c) resolving the issue is not dependent on any new or controverted facts. Based on these factors favoring review, we deny respondents’ motion to strike arguments from appellant’s brief, and, in the interests of justice, we will review whether dismissal of appellant’s underlying lawsuit is an available remedy for breach of the tolling agreement. See Minn. R. Civ.App. P. 103.04 (appellate court may review any matter “as the interest of justice may require”); State v. Hannuksela, 452 N.W.2d 668, 673 n. 7 (Minn.1990) (“[It] is the responsibility of appellate courts to decide cases in accordance with law and that responsibility is not to be diluted by counsel’s oversights, lack of research, failure to specify issues or to cite relevant authorities”) (quotation omitted); Greenbush State Bank v. Stephens, 463 N.W.2d 303, 306 n. 1 (Minn.App.1990) (applying Hannuksela in a civil case), review denied (Minn. Feb. 4, 1991).

II.

On appeal from a summary judgment, this court examines the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). This court reviews de novo whether a genuine issue of material fact exists and whether the district court erred in applying the law. STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 77 (Minn.2002). “The interpretation of a contract is a question of law if no ambiguity exists, but if ambiguous, it is a question of fact and extrinsic evidence may be considered.” City of Virginia v. Northland Office Props. Ltd. P’ship, 465 N.W.2d 424, 427 (Minn.App.1991), review denied (Minn. Apr. 18, 1991).

The district court concluded that appellant agreed not to sue for ten days after notice of cancellation of the tolling agreement and that appellant breached this agreement when she served her summons and complaint less than ten days after receiving notice of cancellation. As the remedy for this breach, the district court granted summary judgment dismissing appellant’s remaining claims without prejudice. The district court did not cite any authority that indicates that the breach of a contract not to sue for a limited time period can be asserted as a defense to claims brought in breach of the contract, and we have not found any controlling authority that directly- addresses this issue. But after examining related authority, we conclude that it cannot.

We have not found any case in which the Minnesota Supreme Court has considered the effect of entering into a covenant not to sue for a limited time period. But we have found cases that address covenants not to sue. Most recently, the supreme court explained that “[a] release or covenant not to sue is an agreement not to enforce an existing cause of action against the party to the agreement. The release is governed ... by rules of contract construction.” Karnes v. Quality Pork Processors, 532 N.W.2d 560, 562 (Minn.1995). “A release is an affirmative defense to a cause of action, and the validity of a release is a matter for the [district] court.” Id. at 563.

These statements might suggest that “release” and “covenant not to sue” are merely different names used to- identify a single legal instrument and, therefore, that a covenant not to sue, like a release, is an affirmative defense to a cause of action. But in earlier cases, the supreme court explained that a release and a covenant not to sue are different types of instruments with different legal consequences.

A release has been defined as a relinquishment, concession, or giving up of a right, claim, or privilege, by the person in whom it exists, to the person against whom it might have been enforced. A release may, dependent upon its terms, have the effect of extinguishing a right of action, and if so, it may be pleaded as a defense to any suit on the action. However, it is a well-established rule that a covenant not to sue does not constitute a satisfaction but merely an agreement not to enforce an existing cause of action against the party to the agreement....

Gronquist v. Olson, 242 Minn. 119, 125, 64 N.W.2d 159, 163-64 (1954) (citations omitted).

In a case that involved a plaintiffs covenant not to sue a joint tortfeasor, the supreme court explained:

Where a person having a cause of action against two or more joint tortfea-sors releases and discharges one of such tortfeasors, it is settled law that he thereby releases and discharges all of them, as he had but a single cause of action and can have only one satisfaction thereof. But a covenant not to sue one or more of such joint tortfeasors does not impair or affect the right to sue the others. It is sometimes difficult to determine whether a particular instrument was intended as a release and discharge or as a covenant not to sue, but where by its terms it applies to only a part of the joint tortfeasors it is not construed as a release and discharge unless such is the plain import of the language used. Some courts even go to the extent of holding that an instrument which expressly releases and discharges some of the joint tortfeasors from all liability, but reserves or purports to reserve a right of action against the others, should be given effect as in substance a covenant not to sue, and as not intended to be a satisfaction and discharge of the cause of action.

Joyce v. Mass. Real Estate Co., 173 Minn. 310, 312-13, 217 N.W. 337, 338 (1928) (citations omitted).

Under Gronquist and Joyce, appellant’s agreement with respondents was not a release, because appellant did not give up her claims against respondents; she only agreed to temporarily refrain from bringing her cause of action. It is evident from the terms of the agreement that there was no intent to extinguish the cause of action and discharge respondents. Instead, the agreement reflects an intention to preserve the cause of action while the parties negotiated in an effort to avoid litigation.

The Minnesota Supreme Court has held that a plaintiff is barred from relief for matters within the scope of a covenant not to sue. Butler v. Butler Bros., 186 Minn. 144, 151-52, 242 N.W. 701, 704 (1932). But in Butler, the covenant not to sue was not an agreement to temporarily refrain from bringing a cause of action; it was an agreement to not institute any action against a corporation or its directors for acts and transactions that happened before a certain date. Id. at 147, 242 N.W. at 702. Because the agreement was to indefinitely forbear from instituting an action for certain acts and transactions, the effect of the agreement was to bar relief for those acts and transactions, and the agreement was, in effect, a release. This appears to be the principle that the supreme court was explaining when it said in Gron-quist that “[a] release may, dependent upon its terms, have the effect of extinguishing a right of action, and if so, it may be pleaded as a defense to any suit on the action.” 242 Minn. at 125, 64 N.W.2d at 164 (emphasis added). But this reasoning does not directly apply when a covenant not to sue does not have the effect of extinguishing a right of action and, therefore, is not a release, because in that case, the right of action continues to exist even though bringing the action may violate the covenant not to sue.

One commentator has explained a basis for treating a covenant not to sue for a limited time period differently than a covenant not to sue at all.

Sometimes an obligee does not manifest an intention to discharge an obligor, but merely makes a contract promising not to sue him or her.... In this connection, it has been said that a covenant not to sue is nothing but a contract, and should be so construed.
A covenant not to sue for a limited time does not suspend or affect in any other way the covenantor’s right to sue, but the covenantee’s only remedy is by an action for damages for breach of the covenant. However a covenant not to sue a debtor at all, or to forbear perpetually, is a bar to the original cause of action as against the particular debtor. This is to avoid circuity of action; for if the plaintiff in the original action were to recover, the defendant could recover precisely the same damages back for breach of the covenant to forbear or not to sue. Instead of permitting the double action, the court produces the same effect more simply by giving judgment for the defendant in the original action.

12 Richard A. Lord, Williston on Con7 tracts § 36:16, at 677-78 (4th ed. 1999) (footnotes omitted) (citing Mendenhall v. Lenwell, 5 Blackf. 125 (Ind.1839) (stating that agreement not to sue for a limited time is no bar to an action brought before the expiration of the given time and that damages may be recovered for a breach, but the covenant cannot have the effect of a release)).

The circuity of action that occurs when there is a covenant to perpetually forbear from bringing suit does not occur in the present case because appellant only agreed not to sue for a limited period. Consequently, a breach occurs when an action is brought early, not when any action is brought, and it is not necessarily the case that the damages to respondents caused by bringing the action early are precisely the same damages that appellant could recover in her underlying action. Because the damages in both actions are not the same, giving judgment to respondents in appellant’s original action will not produce the same effect as permitting appellant’s action to proceed and allowing respondents to recover damages in an action for breach of the tolling agreement.

Under the Restatement (Second) of Contracts, a covenant not to sue for a limited time period acts as a bar to a suit during the limited period. The restatement states:

(1) A contract not to sue is a contract under which the obligee of a duty promises never to sue the obligor or a third person to enforce the duty or not to do so for a limited time.
(2) Except as stated in Subsection (3), a contract never to sue discharges the duty and a contract not to sue for a limited time bars an action to enforce the duty during that time.
(3) A contract not to sue one co-obligor bars levy of execution on the property of the promisee during the agreed time but does not bar an action or the recovery of judgment against any co-obligor.

Restatement (Second) of Contracts § 285 (1979).

We see some merit in the straightforward principle that a party who contracts not to sue for a limited time is barred from bringing an action during that time. But because appellant only agreed to temporarily refrain from bringing her cause of action and did not give up her claims against respondents, we are not persuaded that her contract not to sue for a limited time period should be given the effect of a release and serve as a bar to appellant’s action. Instead, respondents may pursue their available remedies to enforce their rights under the contract. Therefore, we reverse the judgment dismissing appellant’s remaining claims and remand for further proceedings.

III.

By notice of review, respondent Wernecke challenges the denial of his request for attorney fees incurred in successfully defending against appellant’s claims under the MHRA. Appellant voluntarily dismissed her MHRA claims. It is within the district court’s discretion to determine an award of attorney fees under the MHRA. Gillson v. State, Dept. of Natural Res., 492 N.W.2d 835, 843 (Minn.App.1992), review denied (Minn. Jan. 28, 1993).

In an action under the MHRA, a prevailing plaintiff ordinarily is to be awarded attorney fees in all but special circumstances. Christianburg Garment Co. v. EEOC, 434 U.S. 412, 416-17, 98 S.Ct. 694, 698, 54 L.Ed.2d 648 (1978); see Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 628 (Minn.1988) (adopting Title VII standard and procedure for awarding attorney fees). In Sigurdson v. Isanti County, 386 N.W.2d 715, 723 (Minn.1986), the supreme court set forth the standard for awarding attorney fees to a prevailing defendant under the MHRA. The supreme court explained in Sigurdson that

[a]n obvious reason for enactment of subdivision 3 of section 363.14 [the attorney fee provision of the MHRA] was to encourage victims of discrimination to bring suit, particularly where the relief sought is not a large money judgment, and to make legal counsel available in these cases. Making awards of attorney fees equally available to prevailing defendants would likely produce the reverse of the intended effect. Victims with legitimate cases would be discouraged from filing suit, fearing that if they did not prevail, they might be liable for substantial attorney fees incurred by a defendant. Moreover, the typically substantial difference in resources between plaintiffs and defendants in employment discrimination cases supports the conclusion that awards of attorney fees should not be available to prevailing defendants on the same basis as to prevailing plaintiffs. We hold, therefore, that a trial court may, in its discretion, award attorney fees to a prevailing defendant, pursuant to section 363.14, subd. 3, only upon a finding that the employee’s action was frivolous, unreasonable, or without foundation, or was brought in bad faith.

Id.

When the supreme court made this statement in Sigurdson, Minn.Stat. § 363.14, subd. 3 (1984), provided that “[i]n any action or proceeding brought pursuant to this section the court, in its discretion, may allow the prevailing party, other than the department [of human rights], a reasonable attorney’s fee as part of the costs.” In 1992, the current attorney-fee provision was enacted, which states:

In any action or proceeding brought pursuant to this section the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the costs. In any case brought by the department, the court shall order a respondent who is determined to have engaged in an unfair discriminatory practice to reimburse the department and the attorney general for all appropriate litigation and court costs expended ... unless payment of the costs would impose a financial hardship on the respondent.

Minn.Stat. § 363A.33, subd. 7 (2006).

Wernecke argues that it can be inferred from the current statute that if the legislature intended to protect defendants who are found liable for violating the MHRA from having to pay attorney fees to the department in cases of financial hardship, the legislature would also intend to protect individual, nonemployer defendants who prevail in an MHRA action. Therefore, Wernecke argues, the standard adopted in Sigurdson for awarding fees to a prevailing employer-defendant should not apply to individual, nonemployer defendants, and he should be treated like a prevailing plaintiff.

But in making this argument, Wernecke uses a statutory provision that restricts attorney-fee awards against defendants who have violated the MHRA to argue that this court should lower the standard that a prevailing defendant must meet to obtain an attorney-fee award from an unsuccessful plaintiff. Although section 368A.33, subd. 7, reflects a legislative intent to restrict attorney-fee awards against defendants in cases of hardship, it does not follow that when it enacted the current statute, the legislature also intended to change the standard for awarding fees against a plaintiff.

As an alternative to applying to a prevailing defendant the same standard that applies to awarding attorney fees to a prevailing plaintiff, Wernecke argues that “given the Sigurdson Court’s and the Minnesota legislature’s emphasis on the disparate resources between plaintiffs and defendants in MHRA cases,” this court should adopt a new standard for awarding attorney fees to prevailing nonemployer defendants that “require[s] trial courts to examine the resources available to the defendant in question in comparison with the amount of attorneys’ fees and costs incurred in connection with obtaining the result.” But Wernecke does not explain how a standard that considers only the defendant’s resources reflects an emphasis on the disparate resources of plaintiffs and defendants. We are not persuaded that a new standard should be adopted for awarding attorney fees to prevailing no-nemployer defendants.

Finally, Wernecke argues that even if the Sigurdson standard applies to his request for attorney fees, the district court erred in denying his request because appellant’s MHRA claims were unreasonable and without foundation and appellant could not reasonably have hoped to recover against Wernecke. But under Sigurd-son, a district court that finds that a plaintiffs action was frivolous, unreasonable, without foundation, or brought in bad faith may, in its discretion, award attorney fees to a prevailing defendant. 386 N.W.2d at 723. Thus, even if a district court finds that a plaintiffs claims are unreasonable and without foundation, the district court still has discretion to determine whether to award fees. See Bilal v. Northwest Airlines, Inc., 537 N.W.2d 614, 620 (Minn.1995) (stating that finding that there is no legal authority for claim satisfies statutory requirement that plaintiffs action is without foundation, and court could have granted defendant’s request for attorney fees, but court was within its discretion in denying fee request).

The district court explained its denial of Wernecke’s attorney-fee request as follows:

In this case the MHRA claims of [appellant] were part of a much larger action that included several causes of action. Even though the MHRA claims were not voluntarily dismissed until immediately before the summary judgment hearing, any financial burden on ... Wernecke, relating to the MHRA claims, was mitigated by the fact that these claims were a part of the larger overall case, all of which was somewhat tied together. Additionally, the resources of the parties are such that to award attorney fees under the circumstances would controvert the public policy behind the MHRA.

This explanation demonstrates that in denying Wernecke’s request for fees, the district court considered the resources of both the plaintiff and the defendant and that a reason for enacting the attorney-fees provision of the MHRA was to encourage victims of discrimination to bring suit. The district court then exercised its discretion in light of these considerations and declined to award Wernecke fees. Wernecke has not demonstrated that the district court abused its discretion.

DECISION

Because the contract to refrain from initiating a lawsuit for a limited time period is not a release of appellant’s remaining claims, the district court erred in granting summary judgment for respondents dismissing the remaining claims. We reverse the summary judgment for respondents on the claims not voluntarily dismissed by appellant and remand for further proceedings. We affirm the district court’s denial of attorney fees to Wernecke, and we deny respondents’ motion to strike.

Affirmed in part and reversed and remanded in part; motion denied.

      . The supreme court stated this principle again in Karnes when it first stated that "[a] release or covenant not to sue is an agreement not to enforce an existing cause of action against the party to the agreement” and then stated that "[a] release is an affirmative defense to a cause of action.” 532 N.W.2d at 562-63.


author: WORKE, Judge.

text:
    STATE of Minnesota, Respondent, v. Clinton David FERO, Appellant.
    No. A07-353.
    Court of Appeals of Minnesota.
    April 22, 2008.
    Lori Swanson, Attorney General, St. Paul, MN; and James C. Backstrom, Dakota County Attorney, Helen R. Brosna-han, Assistant County Attorney, Hastings, MN, for respondent.
    Lawrence Hammerling, Chief Appellate Public Defender, Steven P. Russett, Assistant Public Defender, St. Paul, MN, for appellant.
    Considered and decided by HUDSON, Presiding Judge; WORKE, Judge; and COLLINS, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

WORKE, Judge.

On appeal from a conviction of third-degree criminal sexual conduct, appellant argues that (1) the evidence was insufficient to prove that he was in a position of authority over the victim; and (2) because the sexual conduct occurred away from the work place at a time when appellant was not in a position of authority, the conduct did not, as a matter of law, constitute third-degree criminal sexual conduct.- We affirm.

FACTS

In September 2005, appellant Clinton David Fero was the assistant manager at a restaurant and was the direct supervisor of A.J., who worked as a cook. Appellant supervised the cooks, set work schedules, was involved in the hiring and disciplining of employees, and was generally in charge of the day-to-day operations of the restaurant. Appellant was 26 years old, and A.J. was 16 years old.

On September 2, 2005, A.J. was working at the restaurant. Appellant was not scheduled to work; however, due to a large volume of orders, he went in to help. After work, appellant, A.J., and two other individuals went to another restaurant. Appellant and A.J. then went to the home of one of the other individuals, where appellant gave A. J. beer. A. J. drank approximately four or five bottles of beer. The group engaged in general conversation, and appellant talked to A.J. about how he should improve his behavior at work.

At some point, appellant and A.J. began kissing. Appellant suggested that they go into a bedroom, where appellant performed oral sex on A.J. A.J. testified that he went along with the behavior because he believed it would be better for him at work; in the past if he rebuffed appellant’s flirting at work, appellant would become angry and take' negative actions against A.J. A.J. testified that he believed appellant would likely terminate him if he rejected appellant’s advances so he went along with it to make appellant happy. After the incident, A.J. went into the bathroom and told another individual in the home what had happened. A.J. then retrieved his clothes and left. A.J. was scheduled to work several days later; however, he did not report to work and was terminated.

Appellant was charged with third-degree criminal sexual conduct. Appellant waived his right to a jury trial and stipulated to venue, age elements, and that he sexually penetrated A.J. The only dispute was whether appellant was in a position of authority over A.J. at the time of the act. Following a court trial, the district court found appellant guilty based on the fact that appellant was in a position of authority over A.J. when the act occurred. The district court found that appellant was in a position of authority over A.J. because:

A. [Appellant] supplied A.J., a minor, with four to five alcoholic beverages before and during the sexual encounter with A. J.
B. [Appellant], as the Assistant Manager at the pizza restaurant where both he and A.J. were working on September 2, 2005, had the authority to assign work hours to employees, including A.J., and had the authority to effectively recommend that disciplinary action could be taken against certain employees including A.J. Indeed, when A.J. did not report for work on September 4, 2005, [appellant] announced that A.J. had been terminated from employment.
C. Although other management personnel and the owner of the pizza restaurant had the authority to veto or change supervisory decisions made by [appellant] with respect to employees, including A.J., there was no evidence that [appellant’s] decisions with respect to assignment of work hours were ever overridden by any other managerial personnel.

The district court concluded that “[o]ne does not lose his or her coercive power to cause a victim to submit to sexual misconduct by virtue of his or her position of authority simply because the misconduct occurs after work hours or off the work site.” The district court further concluded that, “[t]o hold otherwise, could result in the statute not being uniformly applied in certain cases where the misconduct was equally egregious.” This appeal follows.

ISSUE

Did the district court err in concluding that appellant held a position of authority over the victim at the time of the offense?

ANALYSIS

The facts of this case are undisputed. The sole issue on appeal is whether appellant held a position of authority over A.J. at the time the sexual act occurred. Whether a statute has been properly construed is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996).

Appellant was convicted of third-degree criminal sexual conduct.

A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists:
(e) the complainant is at least 16 but less than 18 years of age and the actor is more than 48 months older than the complainant and in a position of authority over the complainant. Neither mistake as to the complainant’s age nor consent to the act by the complainant is a defense[.]

Minn.Stat. § 609.344, subd. 1(e) (2004). A “position of authority”

includes but is not limited to any person who is a parent or acting in the place of a parent and charged with any of a parent’s rights, duties or responsibilities to a child, or a person who is charged with any duty or responsibility for the health, welfare, or supervision of a child, either independently or through another, no matter how brief, at the time of the act. For the purposes of subdivision 11, “position of authority” includes a psychotherapist.

Minn.Stat. § 609.341, subd. 10 (2004). Whether a position of authority arising from an employment relationship carries over to incidents of sexual misconduct off the work premises is an issue of first impression in Minnesota. The closest we have come to addressing this issue was in State v. Mogler, in which a police officer was charged with third-degree criminal sexual conduct for acts that occurred while he was on-duty. 719 N.W.2d 201, 204-05 (Minn.App.2006). In Mogler, we declined to address whether a police officer is always in a position of authority and held that the definition of “position of authority,” as an element of third-degree criminal sexual conduct, is not unconstitutionally vague. Id. at 208-09.

There is no question that appellant held a position of authority over A.J. while on the work premises. “ ‘Position’ indicates either a person’s social standing or employment while ‘authority’ refers to the ‘power to enforce laws, exact obedience, command, determine, or judge.’” Id. at 207 (quoting American Heritage Dictionary 121, 1369 (4th ed.2000)). It is reasonable to conclude that an employer is charged with the duty or responsibility for the health, welfare, or supervision of a child in his or her employ. See State v. Hall, 406 N.W.2d 503, 503-04, 506 (Minn.1987) (reinstating criminal-sexual-conduct conviction based in part on fact that appellant held a position of authority over the victim, a babysitter hired to watch his children); State v. Larson, 520 N.W.2d 456, 461 (Minn.App.1994) (affirming criminal-sexual-conduct convictions based in part on appellant’s position of authority over the victim, his niece), review denied (Minn. Oct. 14, 1994); State v. Hanson, 514 N.W.2d 600, 603 (Minn.App.1994) (affirming criminal-sexual-conduct conviction based in part on fact that appellant was in a position of authority over the victim, his employee, for acts that occurred on the work premises); State v. Bates, 507 N.W.2d 847 (Minn.App.1993) (affirming sentencing departure for criminal-sexual-conduct conviction based in part on fact that appellant, a gymnastics instructor, held a position of authority over the victim, a gymnastics student, even though the acts did not occur during the lessons), review denied (Minn. Dec. 27, 1993); State v. Willette, 421 N.W.2d 342, 346 (Minn.App.1988) (determining criminal-sexual-conduct conviction could be had based in part on fact that appellant held a position of authority over the victim, an unrelated child residing with him), review denied (Minn. May 16, 1998).

The issue is whether appellant was in a position of authority “at the time of the act.” Minn.Stat. § 609.341, subd. 10. Appellant was A.J.’s direct supervisor and had the power to enforce work rules and exact obedience. The act occurred after work hours at the home of another restaurant employee. Appellant gave A.J. beer and engaged A. J. in a discussion regarding ways in which he could improve his behavior at work. A.J. testified that he went along with appellant’s advances because he was worried that he would be terminated if he refused. We conclude that at the time of the act, appellant was in a position of authority over A.J. The fact that the act occurred off the work premises does not relieve appellant from his position of authority. See Bates, 507 N.W.2d at 854 (holding that gymnastics teacher abused his position of trust even though the abuse did not take place during the lessons). The district court correctly concluded that one does not lose his or her coercive power to cause a victim to submit to sexual misconduct by virtue of his or her position of authority simply because the misconduct occurs after work hours or off the work premises.

DECISION

Because an individual in a position of authority arising from an employment relationship may maintain that position of authority when he or she engages in sexual misconduct outside of work hours and off the work premises, the district court did not err in finding that appellant was in a position of authority over A.J. and convicting him of third-degree criminal sexual conduct.

Affirmed.