This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-00-1042

 

In Re the Marriage of:

Lisa Marie Salinas, petitioner,

Respondent,

 

Hennepin County,

Respondent,

 

vs.

 

Juan Salinas,

Appellant.

 

Filed January 9, 2001

Remanded

Peterson, Judge

 

Hennepin County District Court

File No. 232435

 

Mike Hatch, Attorney General, Kim Buechel Mesun, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN† 55101; and

 

Amy Klobuchar, Hennepin County Attorney, Michael J. Gallagher, Assistant County Attorney, 110 South Fourth Street, Minneapolis, MN† 55401 (for respondent)

 

Frank Abramson, 401 Groveland Avenue, Minneapolis, MN† 55403 (for appellant)

 

††††††††††† Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Stoneburner, Judge.


U N P U B L I S H E D†† O P I N I O N

PETERSON, Judge

††††††††††† Appellant-father Juan Salinas challenges an order increasing his child-support obligation to respondent-mother Lisa Salinas.† Because the findings regarding fatherís income are not based on current information, we remand.†

FACTS

††††††††††† The 1998 judgment that dissolved the partiesí marriage awarded mother custody of the partiesí two children and set fatherís support obligation at the guideline level.† The finding of fatherís income included a deduction for support father was paying for a child of a prior relationship.† Mother later sought increased support.† The child-support magistrate based a finding of fatherís income on information in the judgment.† The magistrate also stated that unspecified ďadverse inferencesĒ about father and his attorney were appropriate because the initial submissions by father and his attorney did not disclose that fatherís prior child was emancipated.† The magistrate then increased fatherís support obligation, and the district court affirmed.†††

D E C I S I O N

††††††††††† Support may be modified if the moving party shows substantially changed circumstances that render the existing obligation unreasonable and unfair.† See Minn. Stat. ß 518.64, subd. 2 (Supp. 1999) (requiring changed circumstances and unfairness of existing obligation to modify support); Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996) (stating moving party has burden of proof).† Whether to modify support is discretionary with the district court.† Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn.1986).† On appeal, a district court's findings of fact are not set aside unless clearly erroneous and a finding of net income is affirmed if it has a reasonable basis in fact.† Minn. R. Civ. P. 52.01 (findings of fact); Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987) (finding of net income); see Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000) (stating child-support magistrateís support determination reviewed as if it ďhad been issued by a district court judgeĒ).†

††††††††††† Contrary to case law, the finding of fatherís gross monthly income was based on information in the 1998 judgment.† See Thomas v. Thomas, 407 N.W.2d 124, 127 (Minn. App. 1987) (stating child support is to be based on the obligorís ďcurrent net incomeĒ).† The magistrate stated that ď[father] has established that his ordinary and necessary expenses deducted from his receipts lead to his income being substantially the same as at the time of the prior order.Ē† This statement could be read to suggest that fatherís current financial status was considered in finding his income.† As noted, however, the finding of fatherís gross monthly income was based on information in the 1998 judgment.† From that gross figure, taxes, ďcomputed at Married with one deduction but not taking into account [fatherís] itemized other deductions[,]Ē were deducted.† Support was then set at the guideline level for the resulting net-income figure.†

††††††††††† While one of fatherís affidavits states ď[m]y net income is almost exactly what it was at the time of the dissolutionĒ (emphasis added), we cannot use the affidavit to affirm the finding of fatherís income because the calculation of fatherís income was based on fatherís prior gross income, not his net income.† Also, because the tax figure does not differentiate among fatherís various tax obligations, whether that figure accurately represents fatherís tax liability is unknown.† Moreover, we decline to base our decision on allegations of a party who was not cross-examined and who was apparently found to be not credible.† See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating appellate courts defer to district court credibility determinations).

††††††††††† Father asserts that his claimed business expenses were not challenged.† He then alleges that the calculation of his income both ignores this fact and fails to address his affidavit and the affidavit of his CPA, which show that his annual revenue has decreased and that his net monthly income (as calculated by his CPA) is $1,657 per month.† Father also alleges that the magistrateís underlying findings are inadequate and, consequently, the finding of his income lacks a reasonable basis in fact.† See Moylan, 384 N.W.2d at 863 & 865 (requiring findings of fact in support cases); Strauch, 401 N.W.2d at 447 (same).† Because we remand for findings regarding fatherís current income, expenses, and other support-related financial circumstances, we do not address these issues.†

††††††††††† Whether to reopen the record on remand shall be discretionary with the fact finder.† We express no opinion on how to resolve the remanded issues.†

††††††††††† Remanded.