This opinion will be unpublished and may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

C0-99-1968

 

In Re the Marriage of:

Marianne Tilbury, n/k/a Kauma, petitioner,

Respondent,

 

vs.

 

Steven Tilbury,

Appellant.

 

Filed July 3, 2000

Affirmed in part and remanded in part

Lansing, Judge

Concurring specially,

Randall, Judge

 

St. Louis County District Court

File No. F08863092

 

Marianne Kauma, 14 Hillside Road, Esko, MN 55733 (pro se respondent)

 

Steven Tilbury, P. O. Box 39061, Ninilchik, AK 99639 (pro se appellant)

 

            Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Steven Tilbury appeals the denial of his motion to amend a post-dissolution order.  We affirm in part and remand in part.

FACTS

            In a 1988 dissolution judgment, the district court placed custody of Steven Tilbury and Marianne Kauma’s two children with Kauma.  The court set a monthly support obligation for Tilbury and required him to provide the children’s medical insurance.  Following a stipulated increase in child support, cost-of-living adjustments, and an order addressing medical support, Tilbury’s 1998 support obligation amounted to $356 monthly plus $60 for insurance coverage.

            In March 1999, Tilbury moved to reduce his support obligation, alleging that his income had decreased to $169 monthly.  The parties represented themselves at the motion hearing.  On May 4, 1999, an administrative law judge (ALJ) issued an order stating that Kauma receives “nonpublic assistance services” and finding that no substantial change of circumstances had occurred that made the existing support obligation unreasonable or unfair.  The ALJ rejected Tilbury’s calculation of his income because it included questionable business expenses, incorrectly subtracted child support from the income amount, and did not include his income-tax refund.  The ALJ also found that Tilbury could earn a net monthly income of $1,236, that the guidelines support obligation for this income was $371, and that the support amount ordered was not a deviation from the guidelines.

            The sparse file and the pro se parties’ limited briefing make the remaining facts subject to doubt.  The file contains a June 4 letter from Tilbury that was apparently treated as a motion to amend the findings.  A June 7 letter from Kauma appears to be submitted in opposition to this request, although it refers to an April 22, 1999, rather than a May 4, 1999, order.

            The file contains a June 30, 1999, order in which the ALJ grants Tilbury’s motion to amend because of new evidence.  The order, relying on 1998 figures, finds that Tilbury has adequate skills to generate a monthly income of $1,074, that Kauma’s monthly insurance costs are $122.54, that Tilbury’s guideline support obligation is $322 monthly, and that the support obligation ordered was not a deviation from the guidelines.

            Following this order and the July 1, 1999, transfer of cases to the child-support-magistrate structure, Tilbury filed a standard-form motion indicating that the ALJ’s findings were not justified by the law or the evidence and contained clerical and calculation errors. On August 30, 1999, the child-support magistrate, who as an ALJ had issued the May 4 and June 30 orders, denied the motion, and Tilbury appeals.

D E C I S I O N

            The limited contents of the file and the lack of specificity in the filed papers raise threshold questions of appealability.  These questions are complicated by the pendency of Tilbury’s motion during the transition from the administrative to the magistrate child-support process.  Kauma did not serve notice of filing of the May 4 and June 30 orders, and Tilbury took his appeal within 60 days of a September 16, 1999, notice of filing served by the court administrator.  Therefore, we conclude that whether or not Tilbury’s standard-form motion to the child-support magistrate was authorized, Tilbury’s appeal was taken within the permissible time limit for appeal of those orders, and consequently that the issues he raises on appeal may be reviewed.  See Minn. R. Gen. Pract. 374.01 (under Interim Expedited Child Support Rules, orders may be appealed within 60 days of court administrator’s service of notice of filing).

            Tilbury raises three issues on which he believes the ALJ made erroneous findings.  He asserts the findings (1) overstate his income because the ALJ failed to subtract social-security contributions; (2) fail to deduct $166 for actual monthly medical expenses; and (3) erroneously state that he is a “trained and experienced welder.”

I

            A support obligor’s income should not include amounts deducted for social security.  Minn. Stat. § 518.551, subd. 5(b)(iii) (1998).  The ALJ’s May 4 order states that Tilbury earns or can earn at least $1,236 monthly net income after deducting taxes and social security.  Although the May 4 order specifically excludes social security from the net amount, the order does not indicate, nor does the file provide, a source for the $1,236 income figure.  The June 30 order amending the May 4 income figure states that Tilbury earns or can earn “at least $1,074 monthly,” but does not indicate whether that figure included or excluded social security.  Tilbury has attached to his appeal brief a W-2 form that he indicates was part of the administrative record.  Except by attachment to Tilbury’s brief, however, the W-2 form is not in the record, and we will not consider it.  See Minn. R. Civ. App. P. 110.01 (defining record on appeal as papers filed in “trial court”); Minn. R. Civ. App. P. 101.02, subd. 4 (defining “trial court” to include agency whose decision is sought to be reviewed); Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (stating “[a]n appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below”).  Because the record does not provide a basis for determining whether the ALJ considered Tilbury’s social-security contribution and whether the record was adequate to provide a basis for consideration, we remand for the child-support magistrate to address whether the finding of Tilbury’s net monthly income includes his social security contribution and to make any necessary adjustment in the finding of his net monthly income.

II

            Net monthly income for support purposes excludes the costs for actual medical expenses.  Minn. Stat. § 518.551, subd. 5(b)(vii) (1998) (defining net monthly income for support purposes as excluding cost of “Actual Medical Expenses”).  Tilbury’s original motion to reduce his support obligation claimed monthly expenses of $1,164, designating $166 a month as the sum of his medical and dental expenses.  The May 4 and June 30 orders found Tilbury’s monthly living expenses for himself, his wife, and their child were $1,164.  The orders imply that the ALJ considered Tilbury’s claimed medical costs, at least in determining Tilbury’s monthly expenses.  We note also that an obligor may not deduct all medical expenses attributable to every family member.  See Borcherding v. Borcherding, 566 N.W.2d 90, 93 (Minn. App. 1997) (ruling “actual medical expenses” in Minn. Stat. § 518.551, subd. 5(b)(viii), refers to actual medical expenses of obligor and for any child supported by child-support order).  The ALJ’s findings on Tilbury’s income neither explicitly state whether Tilbury’s medical expenses were considered nor make a determination on whether the expenses are permitted deductions.  Consequently, we remand to determine whether and to what extent the ALJ considered Tilbury’s medical expenses in determining his income.

III

            Tilbury’s last challenge is to the ALJ’s finding that Tilbury is a “trained and experienced welder.”  We note first that Tilbury has not demonstrated that this finding affected the operative provisions of the order.  See Minn. R. Civ. P. 61 (requiring harmless error to be ignored).  Second, the ALJ did amend the original finding that Tilbury is a “trained and experienced welder” to say instead that Tilbury had developed skills for producing income that included “welding, truck driving, and heavy equipment operator.”  Third, and significantly, Tilbury has not provided a transcript from the hearing that produced the May 4 order.  Consequently, we are unable to hold that the finding is unsupported by evidence.  See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (stating appellate courts cannot assume district court error); see also Noltimeier v. Noltimeier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968) (stating party’s pro se status does not relieve him of providing adequate record).  We can broadly interpret appellate procedures in an attempt to provide review and review findings and conclusions to determine whether they are legally adequate.  Absent a transcript, however, we cannot determine whether a finding derived from an evidentiary hearing is supported or unsupported in the record.  Fritz v. Fritz, 390 N.W.2d 924, 925 (Minn. App. 1986).  Because Tilbury failed to produce the record necessary to reverse the finding, the finding stands.

            We express no opinion on how to resolve the remanded issues.  Whether to reopen the record on remand is discretionary with the child-support magistrate.

            Affirmed in part and remanded in part.


RANDALL, Judge (concurring specially)

            I agree with the decision of the majority to reverse and remand for further review of what is reasonable and fair for Tilbury to pay for child support.

            To the issues discussed by the majority, I want to enlarge a little on the propriety of the ALJ’s imputing income to Tilbury, an Alaskan logger and fisherman, by claiming that Tilbury has skills for producing more income than he currently makes utilizing “welding, truck driving, and heavy equipment operator.”  What the record shows is that Tilbury attended a welding course approximately 23 years ago, never completed the course, was never certified as a welder, and was never formally employed as a welder.  There is also nothing in the record to show that he is voluntarily underemployed in the areas of truck driving or heavy equipment operator.  See Minn. Stat. § 518.551, subd. 5b(d) (Supp. 1999) (stating if parent is voluntarily unemployed or underemployed child support calculated based on imputed income).  There is absolutely no finding of any bad faith on the part of Tilbury.  The evidence consists of his former spouse arguing that “he can weld” and “he is very good at it.”

            That record is a far cry from the record in Minnesota cases detailing the steps and factual findings necessary to both impute theoretical income to an obligor, and then require that obligor to pay child support based on a figure that he is supposed to make, but does not really make.  See Kuchinski v. Kuchinski, 551 N.W.2d 727, 728-29 (Minn. App. 1996) (affirming district court determination that obligor was voluntarily unemployed when she moved out of state solely for husband’s career); Roatch v. Puera, 534 N.W.2d 560, 565 (Minn. App. 1995) (affirming district court’s decision imputing income to self-employed obligor who operated several small home businesses, did not draw salary, and commingled personal and business debts).

            In a rural state like Alaska, it is not uncommon for a man, especially one employed in the timber and logging business, to know how to weld, drive a truck, drive a “cat” or a loader, know how to do basic mechanics on gas or diesel engines, and maybe even a little rudimentary plumbing or electrical work.  However, the law has never been that if someone knows a little bit about various jobs, the court can arbitrarily rule that the average income of someone in that profession employed full time is the standard on which they pay child support.

            Another issue that needs to be looked at on remand is the basic calculation of Tilbury’s net income.  The record shows that for the seminal year in question Tilbury earned approximately $7,000.  To that was added a one-time tax refund of $6,000.  Then the ALJ took $13,000 a year, or approximately $1,100 a month, and used that in calculating support.  There is absolutely no basis in law for taking a one-time lump sum of income and then adding that to what an obligor normally earns and using the higher figure as yearly income.  It would have been fairer to use Tilbury’s actual earnings and then apply for that year some percentage of the $6,000 tax refund.  It is only when “bonuses” or “overtime” are so regular and periodic and so much a part of an obligor’s realistic yearly income that that can be figured into the monthly calculation against which is applied the guidelines for child support.  See Desrosier v. Desrosier, 551 N.W.2d 507, 509 (Minn. App. 1996) (concluding district court abused discretion by excluding bonuses from obligor’s income where bonuses were dependable form of periodic payment); Novak v. Novak, 406 N.W.2d 64, 68 (Minn. App. 1987) (holding district court acted within discretion by ordering obligor to pay percentage of bonuses as additional child support), review denied (Minn. July 22, 1987); see also Haasken v. Haasken, 396 N.W.2d 253, 261 (Minn. App. 1986) (upholding district court’s determination that bonuses did not constitute income for child support determination where bonuses were not guaranteed and varied from $0 to $9,000).