This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-2052

 

In Re the Marriage of:
Robert D. Virchow, petitioner,
Appellant,

vs.

Marci J. Virchow,
Respondent.

Filed May 8, 2001

Affirmed

Huspeni, Judge*

 

Freeborn County District Court

File No. F498986

 

James J. Schlichting, Peterson, Savelkoul, Schlichting & Davies, LTD., 211 South Newton, Albert Lea, MN  56007 (for appellant)

 

Lawrence E. Maus, Lee A. Bjorndal, Baudler, Baudler, Maus & Blahnik, 108 North Main Street, Austin, MN  55912 (for respondent)

 

            Considered and decided by Randall, Presiding Judge, Foley, Judge,* and Huspeni, Judge.

U N P U B L I S H E D    O P I N I O N

HUSPENI, Judge

Appellant challenges the denial of his motion to reduce child support, alleging that the district court (1) overstated appellant’s income for support purposes, (2) should have found that appellant no longer receives certain gifts and, hence, that his circumstances have substantially changed under Minn. Stat. § 518.64, subd. 2 (2000), and (3) erred by not applying the holding in Barnier v. Wells, 476 N.W.2d 795 (Minn. App. 1991), which addresses the extent to which gifts to a support obligor can be used as the basis for a child-support obligation.  Because we conclude that the district court did not err in determining that there was no substantial change in circumstances rendering the current support order unreasonable and unfair, and because a remand pursuant to Barnier is not warranted, we affirm.

FACTS

The marriage of appellant Robert D. Virchow and respondent Marci J. Virchow was dissolved after a four-day trial held in July 1999.  At trial appellant testified that throughout the marriage, he had been and continued to be self-employed in farming with his father, that he provided labor and a small amount of farm machinery to the farming operation, and that his father paid for the remainder of the expenses and equipment.  Appellant testified that he received one-third of the crop as his pay.

            The dissolution decree dated October 20, 1999, contained extensive and detailed findings regarding the farming operation.  The district court found appellant’s net income to be only $5,405 per year.  The court added $38,800 to appellant’s yearly net income, however, as “court-acknowledged other resources,” calculating that amount by

multiplying 388 acres by a reasonable figure of $100.00 per acre which [appellant] would have to outlay if he were to have to acquire via rental the equipment and other resources provided to the farming operation by Russell Virchow.

 

The court concluded that this sum was a regular, systematic gift from a dependable source that could be used to determine the amount of a child-support obligation.  The court cited Barnier v. Wells, 476 N.W.2d 795, 797 (Minn. App. 1991), as authority for that conclusion.  Based on appellant’s income as determined by the court, he was ordered to pay child support in the amount of $1,210.13 per month. 

            Both parties brought motions for a new trial; both were denied.  Appellant’s motion challenged the calculation of his income and argued that the rationale of Barnier did not apply to his situation.  While denying the relief appellant requested, the court, in an order dated March 1, 2000, modified the basis on which it determined appellant’s child support.  It appears that the court abandoned the earlier rationale on which it based the $38,800 figure and adopted a cash-flow analysis instead.[1]  While continuing to recognize the $38,800 as “court-acknowledged other resources,” the court explained at length how it arrived at that figure:

The Court arrives at the income figure after review of the parties’ extensive exhibits and also after a great deal of testimony.  * * *  [I]t appears that the parties had, in 1997, expenditures in the amount of $131,967.00.  In 1998, the parties expended $96,831.33.  Neither party was able to submit a thorough explanation as to why there was such a great shortfall between the amount of declared income * * * as compared to the amount of expenditures made by them.  It is obvious to the court that the parties’ standard of living required input from some other sources in order to achieve the amount that the parties spent each year. 

 

* * * *

 

* * *  The Court is unable to reconcile the amount of crop received by [appellant] in light of a one-third/two-third share crop lease.  It appears that [appellant] received substantially more in the way of crop than this type of a lease would have provided to him. 

 

The Court has had to make a determination as to the imputed income from [appellant’s] father and mother, which appears to have been made on a regular basis.  * * * 

 

The average yearly income of [appellant], as determined by the Court, may still be less than the actual income [appellant] was receiving.  However, with the information provided to the Court, the Court has reached the conclusion that this is a reasonable average yearly income * * * .

 

No appeal was taken from this order.

            In April 2000, appellant again challenged findings and conclusions in the decree.  He moved for reduction of child support to $388 per month, arguing that the district court erred in its characterization of resources received from appellant’s parents and again that the court had erred in its reliance on Barnier.  The court denied any of the relief sought by appellant and noted that the loans referenced in the decree were “gifts” for purposes of the amount of income that appellant had at his disposal.  No appeal was taken from this order.[2]

            In July 2000, appellant brought another motion to modify child support.  This motion, alleging a change in circumstances since the dissolution, was heard before a child support magistrate.  In this proceeding, appellant alleged that the gifts given to him by his parents were now loans, and he attached several promissory notes payable to his parents.  In addition, he produced several bills of sale showing that he had sold many of his assets to his parents at low cost to pay back the loans to him.  He argued that because he was no longer receiving any gifts from his parents, there was a decrease in his income justifying a lower child-support obligation.  Appellant presented no evidence that any payments have been made toward fulfillment of the promissory notes.

            The child support magistrate denied appellant’s motion, finding that appellant “continues to be self-employed as a farmer working with his father,” concluding that the issue of appellant’s

child-support obligation has been determined * * * in the Judgment and Decree * * * .  The child support amount was reviewed * * * in the Order dated March 1, 2000, * * * and again by Order dated April 19, 2000 * * * . 

 

The same issue cannot be relitigated in the expedited process and this tribunal cannot substitute its judgment for that of the trial court.

 

            Appellant’s motion for review of the magistrate’s order was considered by the same district court that had presided over the dissolution trial and all of appellant’s posttrial motions.  The district court refused to modify the magistrate’s order, observing that

these issues should have been addressed in an appeal from the District Court’s order rather [than] in a motion that amounts to a collateral attack on said Order.

 

D E C I S I O N

 

A district court has broad discretion to modify child support.  Bledsoe v. Bledsoe, 344 N.W.2d 892, 895 (Minn. App. 1984).  A reviewing court will only reverse the district court if it has abused its discretion; that is, if the order is arbitrary or unreasonable or without evidentiary support.  Id. 

A motion to modify child support is limited to determining whether there has been a substantial change of circumstances that makes the existing child-support order unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a) (2000).  The sole issue before the child support magistrate and the district court was, and before this court is, whether changes in appellant’s circumstances since the dissolution of his marriage are substantial enough to render the current child-support order unreasonable and unfair.  We agree that appellant has not demonstrated the requisite changed circumstances to qualify him for a reduction in his child-support obligation.

Appellant produced promissory notes and bills of sale to his parents in an attempt to show that his circumstances have changed.  But the “debts” he attempts to show through these documents are the very “debts” addressed by the district court at the time of the dissolution trial.  There is no evidence that any payments have been made to his parents.  Neither is there evidence that sums identified at the time of the dissolution as “gifts” or other resources have somehow become loans due and payable.  Actual net income recognized by appellant in his motion before the child support magistrate has, in fact, increased from $5,405 per year in 1998 to $12,674 per year in 1999.  Most important, the farming operation engaged in by appellant and his father continues at present, unchanged from the time of the dissolution decree — a time when the district court struggled to identify the source of approximately $100,000 per year reflected in the parties’ checking account records.

Further, there is no merit in the argument appellant makes regarding the applicability of Barnier v. Wells, 476 N.W.2d 795 (Minn. App. 1991).  In that case, this court remanded to enable the trial court to fashion a reasonable way to report, in a systematic fashion, the amount of the gifts received and to be received.  Id. at 797.  Here, there is no need for a remand.  The district court determined in the dissolution decree and the posttrial motions the extent of gifts received by or other resources available to appellant.  No reporting was deemed necessary by the district court.  No appeal was taken, either from the decree or from posttrial motions.

Failure to appeal from the decree or posttrial motions is, we believe, the most critical factor in this case.  Appellant notes in his brief to this court that he did not appeal the district court determinations in October 1999, March 2000, and April 2000 because “it was reasonable for [appellant] to conclude that the appellate court would defer to the trial court’s decision.”  The decision, for whatever reason, to forego appeal of the district court’s decisions regarding income, resources, gifts, debts, and perhaps most important, the rationale underlying the $38,800, caused those decisions to be the baselines against which all subsequent motions for child-support relief would be tested.  We are required to consider those decisions as we seek to answer the question of whether the requirements of Minn. Stat. § 518.64, subd. 2(a), are met.  See Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966) (stating “[e]ven though the decision of the trial court in the first order may have been wrong, if it is an appealable order it is still final after the time for appeal has expired”).  We conclude that the child support magistrate and district court did not err in determining that those requirements had not been met.

Instead of appealing from the dissolution decree or posttrial motions, wherein appellant could have challenged each and every determination that formed the basis of his child-support obligation, he chose to undertake to convince a fact-finder that a change in circumstances had occurred between April and July 2000.  And he attempts to meet that burden through arguments and evidence that were before the district court in the four-day dissolution trial and in posttrial motions.  An order that is not appealed within the time allowed becomes final even if it is wrong.  Id.

While Minn. Stat. § 518.64, subds. 1, 2, provides a vehicle through which child support can be modified, the requirements of that statute cannot be met by recasting issues that should have been addressed by direct appeal.  What appellant seeks to do in this proceeding is to collaterally attack the dissolution decree.  That he cannot do.  See Minn. Stat. § 518.145 (2000) (finality and reopening of dissolution decree); Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997) (noting legislature’s recognition of importance of finality in dissolution proceedings).

The district court properly affirmed the order of the child support magistrate.  Appellant has failed to show a substantial change in circumstances rendering the current child-support order unreasonable and unfair.

            Affirmed.

 



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

 

[1]  Had appellant directly appealed the initial assessment of $38,800 net income for child-support purposes, a remand might well have resulted.  We are unable to identify a credible rationale for the trial court’s transformation of the use of 388 acres at $100 per acre into income on which to base child support.  That issue, however, has become a hypothetical one.  The $38,800 figure, although now supported by a cash-flow analysis, is a nonappealed determination in the initial decree, shifting to appellant a heavy burden to overturn.  See Minn. Stat. § 518.145 (2000) (finality and reopening of dissolution decree).

 

[2]   In this order, the court noted a scrivener’s error in the October 1999 decree and modified respondent’s living expenses from $1,275 per month as stated in the decree to $1,775 per month.