Cusick v. Cusick (In re Marriage of Cusick)
| Decision Date | 16 March 2020 |
| Docket Number | A19-0224 |
| Parties | In re the Marriage of: Tabatha Annette Cusick n/k/a Tabatha Annette Biegler, Respondent, v. Mark Anthony Cusick, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).
Affirmed
Anoka County District Court
Caitlin E. O'Rourke, Hess & Jendro Law Office, P.A., Elk River, Minnesota (for respondent)
Francis Herbert White III, Brian K. Lewis, Francis White Law, P.L.L.C., Woodbury, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Cochran, Judge; and Segal, Judge.
UNPUBLISHED OPINION
Appellant Mark Anthony Cusick filed a post-dissolution motion to modify his child support, medical support, and child-care support obligations based on a change in his income and other circumstances. The district court denied the motion with respect to his child-support obligation. On appeal, appellant-father argues that the district court abused its discretion when it included his military disability payments and his overtime earnings in its calculation of his income for child-support modification purposes. We affirm.
The marriage between appellant Sergeant Mark Cusick (father) and respondent Tabatha Cusick (mother) was dissolved in September 2015, by stipulated judgment and decree. At the time of the dissolution, mother was employed full-time, with an average gross monthly income of $9,564. Father was employed full-time by Life Link III as a flight paramedic, and was also employed with the Army Reserves; father's average gross monthly income was $5,625, including overtime from both Life Link III and the Army Reserves. Based on the parties' income, and the adjustment to account for father's parenting-time, father was ordered to pay child support for the parties' two minor children in the amount of $919 per month.
In 2018, father retired from the United States Army Reserves and began receiving monthly veteran's disability payments of $951.41. Father continued to work for Life Link III. After retiring from the Army Reserves, father moved to modify his child-support obligation, seeking to have his military disability payments and Life Link III overtime pay excluded from his income for child-support purposes. At the time father filed the motion, his monthly child-support obligation had increased to $932 per month to reflect cost-of-living adjustments.
The district court denied father's motion, ordering him to "continue to pay $932 per month as ongoing basic support." The district court concluded that father's military disability payments constitute income for purposes of child support under Minn. Stat. § 518A.29(a) (2018), and rejected father's argument that Minnesota's statutory definition of income for child-support purposes is preempted by federal law. The district court also found that father's "overtime did not begin after the filing of the petition for dissolution or even the motion to modify child support, nor does it reflect an increase in his work schedule or hours over the past two years." Thus, the district court determined that father's overtime "should continue to be included in his parental income for child support." This appeal follows.
Father challenges the order denying his motion to modify his child-support obligation, arguing that the district court erred by including his military disability payments and his Life Link III overtime as income for purposes of establishing child support.
"[A] district court enjoys broad discretion in ordering modifications to child support orders" provided that it exercises that discretion "within the limits set by the legislature." Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002). A district court's order regarding modification of child support will not be reversed absent an abuse of discretion. Rogers v. Rogers, 622 N.W.2d 813, 822 (Minn. 2001). A district court abuses its discretion if its decision is based on a misapplication of the law or is contrary to the facts in the record. Shearer v. Shearer, 891 N.W.2d 72, 77 (Minn. App. 2017).
A child-support order may be modified on a showing of a substantial change in circumstances that makes the order unreasonable and unfair. See Minn. Stat. § 518A.39, subd. 2(a) (2018). Circumstances that may warrant modification include a "substantially increased or decreased gross income of an obligor or obligee," and a "substantially increased or decreased need of an obligor or obligee." Id., subd. 2(a)(1), (2). When a dissolution judgment is based on the parties' stipulation, the judgment constitutes "baseline circumstances" from which any change in circumstances is measured. Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997). The party seeking to modify child support has the burden of proof. Heaton v. Heaton, 329 N.W.2d 553, 554 (Minn. 1983). While the existence of a stipulation does not bar later consideration of whether a change in circumstances warrants modification, a district court should "carefully and only reluctantly" alter its terms. O'Donnell v. O'Donnell, 678 N.W.2d 471, 475 (Minn. App. 2004) (quotation omitted).
Father argues that the district court "impermissibly" determined that it could include father's military disability compensation as income for the purpose of calculating and modifying child support. Whether a source of funds is considered to be income for child-support purposes is a legal question reviewed de novo. Hubbard Cty. Health & Human Servs. v. Zacher, 742 N.W.2d 223, 227 (Minn. App. 2007).
Minnesota statutes provide that "gross income" is to be used in establishing and modifying child-support obligations and is defined to include "any form of periodicpayment to an individual, including, but not limited to . . . pension and disability payments . . . ." Minn. Stat. § 518A.29(a) (emphasis added). Thus, the definition of "gross income" plainly contemplates that father's military disability payments may be used to calculate his income for child-support purposes.
Father contends that federal law preempts Minnesota's definition of "gross income" and exempts his military disability payments from being used for court-ordered child support. To support his claim, father cites 38 U.S.C. § 5301(a)(1) (2018), which he refers to as an anti-attachment clause, and 42 U.S.C. § 659 (2018). Section 5301(a)(1) provides that veterans' disability payments "shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary." 38 U.S.C. § 5301(a)(1). And section 659(a) provides:
[M]oneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States . . . to any individual, including members of the Armed Forces of the United States, shall be subject, in like manner and to the same extent as if the United States . . . were a private person . . . [to] legal process brought . . . to enforce, [against such] individual to provide child support . . . .
42 U.S.C. § 659(a). But section 659 also exempts veterans' disability payments from its application. 42 U.S.C. § 659(h)(1)(B)(iii).
Under the Supremacy Clause of the Constitution, a federal law prevails over a conflicting state law. U.S. Const. art. VI, cl. 2 (). "Congressional purpose is the ultimate touchstone of the inquiry intowhether a federal statute preempts a state law." Angell v. Angell, 791 N.W.2d 530, 534 (Minn. 2010) (quotations omitted). When considering issues arising under the Supremacy Clause, courts "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 1152 (1947). "Divorce and other family law matters are traditionally within the historic police power of the states." Angell, 791 N.W.2d at 534.
We conclude that the United States Supreme Court's decision in Rose v. Rose, decides the preemption issue raised by appellant. 481 U.S. 619, 107 S. Ct. 2029 (1987). In Rose, the Supreme Court directly addressed whether states are preempted from requiring a veteran to use veterans' disability payments to satisfy child-support obligations and concluded that no preemption exists. The issue arose after a state court held a disabled veteran in contempt for failing to pay child support. Rose, 481 U.S. at 623, 107 S. Ct. at 2032. The veteran's only means of satisfying the child-support obligation were his veterans' disability benefits and Social Security benefits. Id. at 622, 107 S. Ct. at 2032. The state court considered these benefits when establishing child support. Id.
The veteran in Rose, like the father in this case, argued that the state court action was preempted by 38 U.S.C. § 5301 (then 3101) and by 42 U.S.C. § 659. Id. at 630, 634-35, 107 S. Ct. at 2036, 2038. The Supreme Court disagreed. Addressing 38 U.S.C. § 5301, the Supreme Court concluded that a state court order requiring a veteran to use military disability benefits to pay child support did not frustrate the purpose of 38 U.S.C. § 5301 because Congress intended a veteran's disability payments "to support not only the veteran,but the veteran's family as well." Id. at 634, 107 S. Ct. at 2038 (emphasis added). And, with regard to 42 U.S.C. § 659, the Supreme Court rejected the veteran's argument that section 659 "embodies Congress' intent that veterans' disability benefits not be subject to any legal...
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