This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-99-1669

 

In Re the Marriage of:

Timothy Dale Thunstedt, petitioner,

Appellant,

 

vs.

 

 

Terri Lyn Thunstedt, f/k/a

Terri Lyn Anderman, n/k/a

Terri Lyn Swart,

Respondent.

 

Filed May 16, 2000

Affirmed

Toussaint, Chief Judge

 

Kandiyohi County District Court

 File No. F595688

 

 

Brian M. Olsen, Tower Center Mall, P.O. Box 988, Cokato, MN 55321 (for appellant)

 

 

Ann M. Gustafson, 328 Fifth Street Southwest, P.O. Box 567, Willmar, MN 56201 (for respondent)

 

 

            Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Foley, Judge.*

 

 

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

Appellant Timothy Dale Thunstedt appeals the trial court’s order and judgment modifying child support and an award of attorney fees to respondent.  Because the trial court’s determination of appellant’s net income has a reasonable basis in fact and the trial court did not abuse its discretion in modifying child support, and appellant did not brief the attorney fee award, we affirm.

FACTS

            The parties’ marriage was dissolved on October 4, 1995.  Respondent Terri Lyn Swart was awarded custody of the two minor children.  Appellant Timothy Thunstedt was unemployed at the time and agreed to pay $250 per month in child support. Appellant is currently self-employed in the arts and crafts business.  Appellant also tried his hand at rental properties which he was purchasing on a contract for deed basis, but he claims most of these properties were turned back to the original owners and the remaining one is being homesteaded by his mother and provides him with no income.   

            Appellant’s own testimony estimated his total annual receipts from arts and craft sales to be about $40,000 to $50,000.  The trial court then questioned appellant about what margin he used:

Q.        In pricing items for sale, how do you go about determining the appropriate price to cover your overhead and profit?

A.        Well, I just – I guess it depends upon competition at the time.  It’s increasingly being more competitive out there right now.  More people are into it.  It’s never before, you know so –

Q.        Is it a ten percent margin, a 50 percent margin, 20 percent?  What is it?

A.        It’s more than that.  It’s I would say more of a 50 to 60 percent margin, your Honor.

 

The trial court took appellant’s estimate of gross receipts of $50,000 and a 55% profit margin and determined appellant’s net income was $27,500 annually, or $2,292 per month.  Based on appellant’s testimony, the trial court found appellant’s net income had substantially increased and ordered a modification in child support.

D E C I S I O N

Trial courts have broad discretion to provide for the support of the parties’ children.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  Modification of child support is within the trial court’s discretion and will not be reversed absent an abuse of discretion.  Hennessy v. Stelton, 302 Minn. 550, 550, 224 N.W.2d 926, 927 (1974); Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993), review denied (Minn. June 22, 1993).  Also, this court will not reverse a trial court’s determination of net income used to calculate child support if it has a reasonable basis in fact.  Hicks v. Hicks, 533 N.W.2d 885, 886 (Minn. App. 1995). 

Appellant argues that the trial court misunderstood appellant’s testimony as to his income and pricing margin and should have looked to his 1998 tax return to clarify his net income.  Appellant testified that (1) his estimated total receipts from art and craft sales was about $40,000 to $50,000; and (2) he prices items for sale at a 50 to 60 percent margin.  The trial court concluded that this testimony referred to appellant’s profit margin.  The trial court took appellant’s estimate of gross receipts of $50,000 and used a 55% profit margin to determine appellant’s net income, arriving at $27,500 annually. Based on this evidence child support was awarded at $688 per month.  The trial court’s determination of appellant’s net income has a reasonable basis in fact.  We cannot say the trial court abused its discretion in modifying appellant’s child support obligation.

At the time of the hearing, appellant had yet to file his 1998 taxes, so the trial court was unable to consider that information.  Evidence not presented to the trial court for its consideration is not part of the record on appeal, and this court will not consider it.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996); see also Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992) (holding this court will strike documents presented by party’s brief that are not part of appellate record), affirmed 504 N.W.2d 758 (Minn. 1993).  Even if this court were to consider the tax returns, net income for child support purposes may be different from taxable income.  Minn. Stat. § 518.551, subd. 5b(f) (1998).

            Appellant also claims the trial court erred because it did not cite any statutory authority for ordering appellant to deposit $2000 in an escrow account to be used as security for arrearages and future child support payments.  The trial court’s requirement is statutorily authorized by Minn. Stat. § 518.24 (1998) which specifically allows trial courts to require sufficient security for child support payments. 

            In his brief, appellant asks this court to withdraw the attorney fees portion of the trial court’s order.  Because appellant did not present any argument nor cite any authority, he waived this issue.  See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (Minn. 1971) (stating “an assignment of error based on mere assertion and not supported by any argument or authorities in appellant’s brief is waived”); see also State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (relying on Schoepke in holding issue raised but not argued in brief is waived).  

            Affirmed.



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