In re Tami Kay Gallmeier, petitioner Respondent, vs. Sheldon Jay Gallmeier, Appellant, Pine County Community Human Services, Intervenor.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-177

In re

Tami Kay Gallmeier, petitioner

Respondent,

vs.

Sheldon Jay Gallmeier,

Appellant,

Pine County Community Human Services,

Intervenor.

Filed December 16, 2003

Affirmed

Lansing, Judge

Pine County District Court

File No. F7-00-1540

Ann M. Tessneer, Tessneer Law Office, Suite B, 126 South Adams Street, Cambridge, MN  55008 (for respondent)

John G. Westrick, Tammy L. Merkins, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN  55101 (for appellant)

            Considered and decided by Schumacher, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            The district court denied Sheldon Gallmeier's posttrial motion to modify provisions in a dissolution judgment and referred the part of the motion relating to child support to the expedited process for decision by a magistrate.  Because the district court did not abuse its discretion, misapply the law, or make findings unsupported by the record, we affirm. 

F A C T S

            Sheldon and Tami Gallmeier dissolved their marriage in August 2002.  The dissolution judgment provided that Tami Gallmeier would have sole legal and physical custody of the Gallmeier's three children, ages six, four, and two.

            During the course of the dissolution process, Sheldon Gallmeier was terminated from his employment for misconduct.  In the dissolution judgment the court found that Sheldon Gallmeier was voluntarily unemployed and used his prior earnings of $23 an hour and his earnings history to impute income of $20 an hour.  Using this amount the court calculated a monthly child support obligation of $974.

            The court divided the marital property, including the Gallmeier's home.  The court computed Tami Gallmeier's nonmarital interest, found that both Gallmeiers were overextended with debt obligations and neither had sufficient funds to pay creditors, and ordered that the home be placed on the market immediately for sale.

            After entry of judgment Sheldon Gallmeier obtained a job that paid $16 an hour.  He promptly filed a posttrial motion in October 2002 to modify his child support to reflect his current income.  He also moved to recalculate Tami Gallmeier's nonmarital interest in the homestead and requested that the time to list the house for sale be extended so he could attempt to obtain financing to purchase it.

            The district court amended the dissolution judgment to correct a miscalculation in the determination of the nonmarital interest but denied Sheldon Gallmeier's request to delay the sale of the home.  The court concluded that an additional evidentiary hearing was necessary to determine Sheldon Gallmeier's current income for purposes of child support and referred that issue to the expedited child support process for hearing by a magistrate.  See Minn. R. Gen. Pract. 353.02, subd. 2 (providing that if additional hearing is necessary district court may refer child support issues to child support magistrate).

            Two months later Sheldon Gallmeier moved for emergency relief to compel Tami Gallmeier to sell him the marital home.  Before the motion could be scheduled for hearing, Sheldon Gallmeier appealed from the amended judgment.  During the pendency of the appeal, Sheldon Gallmeier and Tami Gallmeier stipulated that commencing April 1, 2003, Sheldon Gallmeier would pay child support calculated on a wage of $17 an hour.

D E C I S I O N

            On appeal Sheldon Gallmeier has narrowed his issues to two claims.  First, he claims that the district court erred in failing to modify child support at the time of his posttrial motion and thus he is entitled to a retroactive reduction of the support amount for the months between his posttrial motion and the effective date of the stipulated modification.  Sheldon Gallmeier's second claim is that the district court abused its discretion in denying him an extension of time to purchase the marital home.

I

Sheldon Gallmeier's argument that he should receive a retroactive reduction for the stipulated child support modification has two fatal deficiencies.  First, Sheldon Gallmeier did not bring a motion in the district court to have his reduced child support obligation relate back to the date of his original motion.  Therefore the issue is not appropriately before this court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding only issues presented to and considered by the district court may be reviewed).  The district court had authority to refer the case to the child support magistrate for an evidentiary hearing under Minn. R. Gen. Pract. 353.02, subd. 2.  Sheldon Gallmeier has presented no support for his challenge to the court's authority to refer the issue for hearing.  But whether or not the issue was referred to the magistrate, he must still obtain a ruling that would permit an appeal.  Komatz Constr. Inc. v. W. Union Tel. Co., 290 Minn. 129, 142, 186 N.W.2d 691, 699 (1971) (an issue not litigated below is not subject to review).

Second, Sheldon Gallmeier waived the issue of retroactivity by the terms of his stipulated order.  The order provides that "[c]ommencing April 1, 2003" Sheldon Gallmeier "shall pay ongoing child support" that is based on wages "of $17 per hour."  Had the parties intended to have the reduced obligation start in October 2002 rather than April 2003 the language would be different.  Sheldon Gallmeier argues that the issue of the amount of child support arrears owed between October 2002 and April 2003 was reserved for appeal.  But nothing in the June 2003 order reserves this issue.  Paragraph six of the stipulated order indicates an appeal is pending, but it does not reserve the issue of retroactive child support accruing before April 1, 2003.  Because the stipulated order did not reserve the issue, the issue is now moot.  

II

Sheldon Gallmeier's second argument is that the district court abused its discretion by denying his motion to delay the listing of the marital home to allow him an extension of time to secure financing to purchase the home.  A property division in a dissolution action is final and cannot be revoked or modified unless the standards that justify reopening a judgment exist.  Minn. Stat. § 518.64, subd. 2(e) (2002).  But a district court may issue orders to implement, enforce, or clarify the provisions of a judgment, so long as it does not alter either party's substantive rights.  Kornberg v. Kornberg, 542 N.W.2d 379, 388 (Minn. 1996).  The district court has discretion to implement the provisions of the dissolution decree by amending the judgment.  Linder v. Linder, 391 N.W.2d 5, 8 (Minn. App. 1986).  We review the implementation of a dissolution judgment under an abuse-of-discretion standard.  Potter v. Potter, 471 N.W.2d 113, 114 (Minn. App. 1991).

The dissolution judgment provided that Sheldon Gallmeier could purchase the marital home directly "if feasible."  The judgment also mandated that the marital home be listed for sale no later than September 15, 2002.  The judgment thus implicitly gave Sheldon Gallmeier fifteen days to obtain financing before the house had to be listed for sale.  In denying the motion to extend the time for listing the home, the district court essentially reasoned that because it had erred in the calculation of Tami Gallmeier's nonmarital interest, Sheldon Gallmeier was in effect given an additional five months to obtain financing (the time between the original judgment and the issuance of the amended judgment).  The court's reasoning is supported by logic and the record; it did not abuse its discretion in denying additional time.

Further, Sheldon Gallmeier acknowledges that he would only be able to arrange financing if he could purchase the marital home at the tax-assessment value.  But there is no factual or legal support for his argument that he has a right to purchase at the tax-assessment value.  The district court used this value to determine each of the Gallmeiers' interests in the homestead.  Neither the original nor the amended judgment sets the selling price at the tax-assessment value or gives Sheldon Gallmeier the right to buy the home at the tax-assessment value.  Market value is controlling when valuing an asset for the purposes of a  marital dissolution.  Bateman v. Bateman, 382 N.W.2d 240, 246 (Minn. App. 1986).  Sheldon Gallmeier did not have the right to purchase the marital home at the tax-assessment value. 

            Affirmed.