Lively Exchange of Ideas About Improvements in MN Family Courts: See Today's Star Tribune

http://www.startribune.com/opinion/otherviews/137720938.html

Judge Can Only Make Findings of Fact & Conclusions of Law on an Issue If Evidence Is Received

Frequently I hear complaints from judges that at trial attorneys are focusing on a hotly-contested issue, such as custody, and completely forgetting about related issues such as child support or dependency exemptions.  It is not unusual to have several hours, or even days, of testimony on custody and/or parenting time, but then have little or nothing in evidence about the income and expenses of the parties.  Then the lawyers seek amended findings of fact on issues for which no trial evidence was received.  Likewise, parties who seem to have a settlement may forget about a related issue, like dependency exemptions, when the hotly-contested custody issue is resolved.  Something to keep in mind.

"The Judge Looks Bored"- Recommended Reading for Family Lawyers

The December 2011 issue of BENCH & BAR, the monthly publication of the Minnesota State Bar Association, has a fine article by Hennepin County District Court Judge Jay Quam entitled "The Judge Looks Bored."  His observations and recommendations are a must reading for family lawyers since all family law cases in MN are heard by judges and never juries.  He provides a good explanation for the frequent comment by judges during court trial: "Please move things along, counsel."

Click the following link, then click Bench and Bar on the lower left of the MSBA home page:

www.mnbar.org

MN Child Support Calculation Must Be Based on Parenting Time As Ordered, Not As Exercised

Reported in Minnesota Lawyer on 12-26-11 is the Hermann case in which the Court of Appeals reiterated that under the MN child support statute, the 12% reduction in support for a parent who has 10% to 45% of parenting time, as well as the presumption that parenting time is equal when 45.1 % to 50% (Minn. Stat. 518A.36, Sub. 2(i)(ii))  is based upon parenting time as stated in the court order, NOT as exercised.  This opinion is a reminder to counsel that at child support review hearings it will be fruitless to argue that the visiting parent/support obligor does not actually exercise all of the parenting time ordered, or in fact exercises more.

Interest on Unpaid Property Settlement Is Statutory, Not Discretionary

Widely-reported this week was the decision of the MN Court of Appeals that a trial court properly added 10% statutory interest on unpaid property settlement payments (principal due of $4.5 million...yes, million!) owed by a wealthy hedge fund manager to his former wife. For we math "wizards"  that's $450,000 in annual simple interest.  The appellant had previously sought modification of the property settlement due to changing and adverse market conditions, but that motion was denied by the trial court and affirmed on appeal in 2010 (2010 WL 3543458).
Minn.Stat. 549.09, Sub. 1(c)(2) provides for 10% interest per year on money judgments exceeding $50,000, however prejudgment interest cannot be awarded. The judge has no discretion to award interest at a lesser rate.

MN Court of Appeals: Topic on The District Court Show

The Minnesota Court of Appeals and its Family Law Mediation Project are the topics of the most recent District Court Show viewable at: www.QCTV.org  (see link in right margin here)
At the website,
Click Community and then The District Court Show.
My guests are Judge Roger Klaphake and family lawyer Jeff Hicken.  Duration is 30 minutes.

Judge Adopting One Side's Proposed Decree in Contested Case Discouraged

Occasionally we read in MN appellate decisions that the appellant "challenges the findings of fact...arguing that the wholesale adoption of respondent's findings of fact...reflect the district court's failure to independently assess the evidence, resulting in a manifest injustice..." quoting here from Guiliani v. Anderson reported in Minn. Lawyer on 11-7-11.  The appellant prevailed and the case was remanded for more specific findings.  The Court of Appeals cited Bliss, 493 NW2d 583, 590 (Minn. App. 1992) which holds that it is not per se reversible error for the trial court to adopt one party's proposed decree.  However,  it "raises the question of whether the trial court independently evaluated each party's testimony and evidence."  I have always made it my practice to make findings of fact as the evidence is presented in the courtroom, then supplement any proposed findings of fact with my own.  Simply adopting one side's proposed decree, even if the opponent is pro se and submits none, may result in reversal and remand.

This case also has helpful discussion of the trial court allowing reasonable accommodations to the unrepresented party.