This opinion will be unpublished and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

C4-00-2001

 

In Re the Marriage of:

Rita M. Hlavka, now known as

Rita M. Starkson,

Appellant,

 

vs.

 

Frank J. Hlavka,

Respondent.

 

Filed July 3, 2001

Affirmed

Willis, Judge

 

Dakota County District Court

File No. F49114973

 

Robert J. Hajek, Warchol, Berndt & Hajek, P.A., Suite 110, 3433 Broadway Street NE, Minneapolis, MN  55413 (for appellant)

 

Jonathan J. Fogel, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN  55431 (for respondent)

 

            Considered and decided by Willis, Presiding Judge, Hanson, Judge, and Foley, Judge.*


U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges the child-support magistrate’s computation of her ex-husband’s arrearages.  Because the magistrate did not abuse her discretion, we affirm.

FACTS

            Respondent Frank J. Hlavka was ordered to pay monthly child support after the April 1992 dissolution of his marriage to appellant Rita M. Starkson.  The district court modified Hlavka’s child-support obligation in November 1992 and ordered him to verify his income on a monthly basis.

In July 1994, an administrative-law judge modified Hlavka’s child support to $429 monthly, plus 30% of his monthly net commissions, and ordered Hlavka to provide monthly verification of his salary and commissions to Starkson and to Dakota County.  The $429 represented guidelines support of 30% of Hlavka’s net monthly non-commission income.  A November 1994 order affirmed the terms of Hlavka’s child-support obligation.  Cost-of-living adjustments in 1996 and 1998 increased Hlavka’s monthly obligation to $470, plus 30% of his net commissions.

            On January 21, 2000, Starkson served Hlavka with a motion asking for an increase in child support and a computation of arrearages.  Hlavka opposed the motion and moved to limit his monthly obligation to be consistent with the statutory cap on monthly child-support payments for an obligor whose net monthly income exceeds $5,000, as adjusted for cost-of-living changes, under Minn. Stat. § 518.551(k) (2000).

At a hearing before a child-support magistrate, Hlavka testified that:  (1) from November 1994 to November 1998, he worked as a recruiter and the director of recruiting at a professional-placement service, Fogerty and Associates, of which he was a 10% owner; (2) his annual salary increased from $36,000 in 1995 to $50,000 in 1996, and it remained at that level until he changed jobs and moved to Chicago in November 1998; (3) although he received no commissions while working at Fogerty, he did receive “bonuses based on production,” “bonus overrides,” and “overrides” on which he paid no child support and about which he did not inform the county; (4) he did not provide Starkson with income-tax returns for the years 1995 to 1999 until she served her January 2000 motion; (5) although he knew the county had asked Fogerty for verification of his salary and bonuses, he did not participate in Fogerty’s response to the county, he did not know what response Fogerty made, and he did not ensure that the information Fogerty provided was accurate; and (6) his partner at Fogerty determined his salary, and it was not Hlavka’s decision whether to call the increase in his compensation for 1996 “income” rather than a “bonus” or “commission.”  Hlavka admitted at the hearing that he did not know the difference between a bonus and a commission.

Starkson submitted proposed findings of fact in which she used Hlavka’s income-tax returns to compute his average net monthly incomes for each year since January 1995.  On that basis, Starkson proposed that the magistrate find that Hlavka owed her arrearages of $29,598.65, which represented the amount by which 30% of Hlavka’s net income since January 1995 exceeded the child-support payments he had made during that time.

The child-support magistrate increased Hlavka’s monthly child-support obligation to the guidelines amount of $660 and ordered Hlavka also to pay 30% of his net commissions, effective February 1, 2000.  Noting Hlavka’s inability to explain the difference between a bonus and a commission and that the additional income Hlavka received from Fogerty was based on placements made by him and people he managed, the magistrate determined that Hlavka’s “bonuses based on production,” “bonus overrides,” and “overrides” were commissions.  The magistrate found that Hlavka owed Starkson arrearages of $7,430 on commission income and $284.60 on “non-commission income.”  Starkson moved for amended findings, claiming, in part, that the magistrate miscalculated arrearages.  The magistrate determined that arrearages were correctly computed, and this appeal followed.

D E C I S I O N

Starkson appeals from an order issued by a child-support magistrate in a proceeding conducted under the expedited child-support process.[1]  When reviewing such orders,

we will apply the same standard of review that we would apply to the order if it had been issued by a district court judge in a proceeding conducted outside the expedited child-support process.

 

Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000).  Accordingly, we will reverse only if the magistrate abused her broad discretion by resolving the matter in a manner that is against logic and the facts on the record.  Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999) (stating standard of review for child-support orders issued by district courts in proceedings conducted outside the expedited child-support process).

Starkson claims that she did not ask the magistrate to modify retroactively the administrative-law judge’s November 1994 order, “but rather to enforce it by requiring Hlavka to pay 30% of his total net income as the parties intended.”  Minnesota law provides, as it did in 1994, that unless the parties stipulate otherwise

the court shall determine and order child support in a specific dollar amount in accordance with the guidelines * * * .  The court may also order the obligor to pay child support in the form of a percentage share of the obligor’s net bonuses, commissions, or other forms of compensation, in addition to  * * * an order for a specific dollar amount.

 

Minn. Stat. § 518.551, subd. 5(a) (1994 & 2000) (emphasis added).  Here, Starkson and Hlavka did not stipulate that child support would be a percentage of Hlavka’s total net income.  The administrative-law judge’s November 1994 order clearly states that Hlavka was to pay monthly child support in the amount of $429, which was twice adjusted to higher specific dollar amounts to reflect changes in the cost of living, and 30% of his net commissions.  Additionally, Starkson cites no authority for the proposition that the intent of the parties should govern the interpretation of an unambiguous order, and our review of Minnesota caselaw reveals none.

Alternatively, Starkson contends that Hlavka avoided his child-support obligation by deceit and non-disclosure by telling her that he did not receive any commissions and by failing to provide monthly verification of his income.  While continuing to assert that she is not seeking retroactive modification of Hlavka’s child support, Starkson cites Gully, a case addressing the issue of retroactive modification of child support, and claims that it controls here.

In Gully, the child-support obligor was ordered to provide verification of his income to the county but not to the obligee.  599 N.W.2d at 817.  The obligor did not provide the county with paystubs or tax returns, and the county did not attempt to obtain income information from him.  Id.  Relying on Minn. Stat. § 518.64, subd. 2(d)(1) (1998), the supreme court noted that although a magistrate may, in general, make a child-support modification effective as of the date the motion was served on the opposing party, the magistrate may make modification effective to an earlier date if she makes an express finding that

the party seeking modification was precluded from serving a motion by reason of a * * * material misrepresentation of another party * * *  and that the party seeking modification, when no longer precluded, promptly served a motion.

 

Id. at 820-21 (emphasis omitted).  The supreme court noted that:  (1) a person makes a misrepresentation by either making “an affirmative statement that is itself false” or by “concealing or not disclosing certain facts that render the facts that are disclosed misleading,” and (2) a misrepresentation is material if it relates to a matter on which the obligee could be expected to rely.  Id. at 821.   The court also adopted a broad definition of the term “precluded”:

[A] party is precluded from bringing a motion for modification at an earlier time when the party demonstrates to the district court that it would have been unreasonable to do so given the circumstances.

 

Id. at 824.

The Gully court affirmed the district court’s determination that the obligor had made a material misrepresentation by failing to verify his income because the obligee was unaware that the obligor was not complying with the order, and thus she “had no reason to know whether it was proper to bring a motion for modification.”  Id. at 822.  The supreme court noted that the district court could properly conclude that the obligor’s failure to disclose his financial information as required precluded the obligee from bringing the motion at an earlier time because she was unaware that the obligor was not providing his financial information to the county.  Id. at 824.

Here, Starkson’s claim that Hlavka avoided his child-support obligation by “deceit and non-disclosure” is equivalent to saying that Hlavka made a material misrepresentation that precluded her from bringing a motion to modify his child-support obligation earlier than she did.  But unlike the obligee in Gully, Starkson knew that Hlavka was not verifying his income to her as ordered.  In an October 1994 letter to the administrative-law judge, Starkson argued that Hlavka had been in contempt of court since November 1992 because he had not been providing income information on a monthly basis as ordered, and no subsequent order changed Hlavka’s duty to provide that information to Starkson.  Because Starkson knew that Hlavka was not verifying his income to her as ordered, the magistrate did not abuse her discretion in failing to find that Hlavka made a material misrepresentation that precluded Starkson from bringing an earlier modification motion.

We conclude, therefore, that the child-support magistrate did not abuse her discretion in calculating Hlavka’s arrearages.

Affirmed.



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

[1] Because Starkson receives IV-D support services, she was required to use the expedited child-support process.  See Minn. R. Gen. Pract. 351.03, subd. 1 (providing that expedited child-support process must be used when modifying child support in an IV-D case), 352.01(e) (defining “IV-D case” to include any proceeding where party has applied for child-support services under title IV-D of Social Security Act, 42 U.S.C. § 654(4)).