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In re Marriage of Ziemke

Court of Appeals of Minnesota

August 19, 2013

In re the Marriage of: Colleen Marie Ziemke, petitioner, Respondent,
v.
Shawn Craig Ziemke, Appellant.

UNPUBLISHED OPINION

Smith, Judge Dakota County District Court File No. 19-F6-02-016480

Carrie A. Doom, The Law Firm of Carrie A. Doom, Isanti, Minnesota (for appellant)

Thomas H. Boyd, Winthrop & Weinstine, P.A., Minneapolis, Minnesota (for respondent)

Considered and decided by Smith, Presiding Judge; Peterson, Judge; and Chutich, Judge.

SMITH, Judge

We affirm the denial of appellant's motion to reduce his child support obligation because the district court did not abuse its discretion in determining that appellant had failed to establish that his existing child support order was unreasonable an unfair based on the evidence that was admissible.

FACTS

Appellant Shawn Ziemke and respondent Colleen Ziemke divorced in 2003. Respondent received sole physical custody of the parties' two minor children, subject to appellant's right of reasonable parenting time. As part of the divorce decree, the district court established appellant's child-support obligation.

On June 25, 2012, appellant filed a motion to modify his child-support obligation.[1]Appellant alleged that he was unemployed and was unable to work due to a back injury. He noted that he was undergoing physical and occupational therapy. Appellant explained in an affidavit that "I gave [work] two weeks notice and had accepted a job driving buses for the Isanti/Cambridge School District. On June 21, 2012, while working at my last job, I hurt my back." Although appellant began training for the bus-driver position, he alleged that because of his injury "they could not have me driving buses." Respondent filed a responsive motion requesting denial of appellant's motion. On July 31, the district court reserved appellant's motion to modify "given the limited information on the permanency of [appellant's] alleged back injury and how it might impact his employment."

Appellant includes a multitude of medical documentation with his appellate materials. However, the record is unclear regarding what documents the district court actually received into evidence. According to this documentation, appellant underwent an MRI to determine the extent of his back injury. The MRI revealed "moderate to moderately severe spinal canal stenosis" of the L2-3 and L3-4 discs and "[a]lmost certain compression of the left L3 nerve root." Dr. Amir Mehbod reviewed the MRI results. Dr. Mehbod noted that "[the injury] has actually gotten better since this all started[]" and ordered a "conservative care" approach consisting of physical therapy and an epidural injection. Dr. Mehbod also indicated that appellant was unable to work from June 21 through October 2.

Appellant also includes a report from Rehab Results, LLC dated August 30. This report indicates that "Dr. Mehbod has recommended the client for the surgical procedure." The report also noted that "Dr. Mehbod did provide an updated work ability form stating that the client should continue to remain off work until the surgery has been completed." The report indicated that a "Qualified Rehabilitation Consultant" completed the report and that it was "dictated not read." The surgery remained unscheduled during the pendency of appellant's motion.

On October 4, the district court heard argument on appellant's motion. Although the district court never clarifies what evidence it received or reviewed, both parties discussed appellant's medical paperwork during the hearing. Specifically, respondent raised a hearsay objection, contending, "I [have] received the doctor's reports that the Court has and I read through them . . . I would object to the Court considering those documents as hearsay without the doctor here to testify." The district court never explicitly ruled on the objection. On October 22, the district court denied appellant's motion to modify. The district court concluded that appellant "voluntarily terminated his most recent employment . . . has not worked since [his alleged injury] nor has he ...


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