This opinion will be unpublished and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

C6-01-325

 

 

In Re the Marriage of: Tracy D. Miller,

petitioner,

Respondent,

 

vs.

 

Stephen R. Miller,

Appellant,

County of Dakota,

Intervenor.

 

 

Filed August 14, 2001

Affirmed; motion denied

G. Barry Anderson, Judge

 

Dakota County District Court

File No. F89614459

 

 

John R. Schulz, Jennifer Ann Jameson, Collins, Buckley, Sauntry & Haugh P.L.L.P., W. 1100 First National Bank Building, 332 Minnesota Street, St. Paul, MN  55101 (for respondent)

 

Stephen Miller, 16472 Griffon Trail, Lakeville, MN  55044 (pro se appellant)

 

James M. Crow, Assistant Dakota County Attorney, 1560 West Highway 55, Hastings, MN  55033 (for intervenor)

 

            Considered and decided by Robert Schumacher, Presiding Judge, R.A. Randall, Judge and G. Barry Anderson, Judge.

U N P U B L I S H E D  O P I N I O N

G. BARRY ANDERSON, Judge

            After the child support magistrate’s denial of his motion for review, appellant challenges the child support magistrate’s (1) calculation of his income for child support purposes; (2) refusal to eliminate his child-care cost obligation; and (3) award of bad-faith attorney fees to respondent.  Respondent, by notice of review, argues that the magistrate should have imputed income to appellant.  Respondent also asks for bad-faith attorney fees on appeal.  We affirm the child support magistrate’s order and deny respondent’s motion for attorney fees.

FACTS

Appellant Stephen Robert Miller and respondent Tracy Dian Miller married in 1984 and dissolved their marriage in 1997.  The parties, by marital termination agreement incorporated into the judgment, agreed to share legal custody of their two children, and respondent has “primary” physical custody subject to appellant’s “minimum access schedule” of visitation on holidays, alternating weekends, and one evening each week.  The dissolution judgment set appellant’s monthly child support obligation between $800 and the maximum guideline amount, and ordered appellant to pay 43% of child-care expenses.

            In 1998, appellant began a new job and his earnings increased considerably.  Respondent moved to modify child support.  The administrative law judge granted the motion and ordered appellant to pay monthly child support of $1,660.67 and a portion of the children’s medical costs.  The child-care provision of the earlier order remained in force. 

            On May 2, 2000, appellant filed a motion to modify child support based on his increased time with the children and reduced income.  On May 15, 2000, before any ruling on the May 2, 2000 motion, appellant’s employer terminated his employment.  After an unsuccessful month-long job search, appellant started a consulting business.  Appellant prepared a business plan that showed the salary he planned to pay himself and projected profits through year 2003.

            On June 2, 2000, appellant amended the May 2, 2000, motion, again seeking modification of child support based on his reduced income as demonstrated by his business plan.  Following a hearing, the child support magistrate granted appellant’s motion and reduced his monthly child support obligation.  The magistrate also found that appellant’s May 2, 2000, motion was brought in bad faith and unreasonably contributed to the cost of the proceeding, and awarded respondent $999 in bad-faith attorney fees.   

Appellant filed a motion for review.  The child support magistrate conducted an independent review of the record based on the parties’ written submissions and denied the motion.  The child support magistrate also affirmed the attorney-fee award.  Appellant now challenges the denial of the motion for review.  Respondent, by notice of review, argues that the child support magistrate erred by not imputing additional income to appellant.  Respondent also asks for bad-faith attorney fees on appeal. 

D E C I S I O N

Generally, the decisions to modify child support and to award attorney fees are discretionary.  Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986); Minn. Stat. § 518.14, subd. 1 (2000).  Under Minn. R. Civ. App. P. 110.02 subd. 1(a), it is the appellant’s responsibility to provide this court with any trial transcript necessary to address the issues appellant raises on appeal.   Where, as here, an appellant fails to provide a transcript, review is limited to whether the findings of fact support the conclusions of law and the judgment.  Duluth Herald & News Tribune v. Plymouth Optical Co., 286 Minn. 495, 498, 176 N.W.2d 552, 555 (1970); see also Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968) (party’s pro se status did not relieve him of providing adequate record.)  We need not, however, dismiss an appeal where, as here, the submissions of the parties, together with the decisions of the child support magistrate, provide an adequate record upon which this court can make its decision.  See Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995) (reaching issues despite absence of transcript).

I.

            Appellant first argues that the child support magistrate should not have “imputed  an income” to him based on his projected business plan.  In the alternative, appellant argues that the magistrate understated the non-start-up business expenses and failed to apply the Hortis/Valentochild support formula.  These issues were not raised in appellant’s motion for review and were not independently reviewed by the child support magistrate; consequently, we need not address them.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (issues not presented to and decided by the district court generally not addressed by reviewing courts on appeal).  We elect to do so, however, in the interests of justice.  See Minn. R. Civ. App. P. 103.04 (providing this court has discretion to address any issue as justice requires). 

A.         Imputed Income

            Appellant maintains that the child support magistrate should not have imputed income to him without making a corresponding finding that he is voluntarily underemployed.  Minnesota law allows for modification of a child support award if one party has “substantially increased or decreased earnings * * * .”  Minn. Stat. § 518.64, subd. 2(a) (1) (2000).  After determining that the change in earnings is substantial, the court must determine whether that change renders the existing support obligation unreasonable and unfair.  Id.  If the court finds both that there has been a substantial change in circumstances and that the change renders the existing support award unreasonable and unfair, it then must find the obligor’s net monthly income and apply the statutory child support guidelines to that figure.  See Minn. Stat. § 518.551, subd. 5(b)(i) (2000) (setting forth the guidelines).  Minn. Stat. § 518.551, subd. 5b(d) (2000), permits the court to calculate child support based on imputed income if the court finds that a parent is voluntarily underemployed.  Id.

We conclude that there is no error in this case because the child support magistrate did not impute income to appellant, but instead relied on the business plan appellant submitted as evidence of his income, found that appellant’s salary reduction constituted a substantial change in circumstances, and granted appellant’s motion to modify child support. 

            Respondent contends, by notice of review, that the magistrate ought to have imputed income to appellant because he was voluntarily underemployed.  Respondent asserts that appellant chose to limit his income by quitting his last job for the purpose of evading child support.  We reject these arguments because they have no support in the record.

A parent is not considered voluntarily underemployed if the parent demonstrates the underemployment

(1) is temporary and will ultimately lead to an increase in income; or (2) represents a bona fide career change that outweighs the adverse effect of that parent’s diminished income on the child.

 

Id.  The child support magistrate found, and the evidence demonstrates, that (1) appellant made efforts to find employment; (2) appellant did not quit his previous employment, but was instead “discharged for reasons other than employee misconduct;” and (3) appellant’s business plan projected that his salary would, over three years, return to the level of compensation he received during 1998-99.

Appellant’s current situation is temporary and may lead to an increase in income.  Because appellant’s consulting business was in the first months of operation at the time of the modification hearing, the child support magistrate scheduled a review hearing in October 2001 for the purpose of assessing appellant’s ability to pay child support based on his realized income, as reflected in his income tax and business records.  See Minn. Stat. § 518.551, subd. 5b(a) (2000) (providing that district courts may calculate income from self-employment based on “receipts and expenses,” a parent’s “most recent federal tax returns,” and “all other documents evidencing income as received that provide verification of income over a longer period”).  We conclude that the findings support the magistrate’s decision to rely on appellant’s business plan when calculating his income.

B.         Non-Start-Up Business Expenses

            Appellant next contends that the child support magistrate erred in calculating his income by understating his non-start-up (operating) business expenses for the year 2000. But appellant’s business plan did not show any non-start up business expenses for 2000.  Appellant now contends that fiscal year 2001 includes some months of 2000.  Although the business plan separates projected revenue for years 2000 and 2001, it does not separate expenses for those years.  Absent evidence of the operating expenses that were projected to occur in 2000, the child support magistrate’s finding that appellant’s business plan did not show 2000 operating expenses is not clearly erroneous.  Cf. Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn. App. 1985) (stating party who fails to provide district court with information necessary to grant motion to reduce child support cannot complain about denial on appeal). 

C.        Hortis/Valento

            Appellant also argues that the child support magistrate erred by failing to apply the Hortis/Valentoformula to calculate child support because appellant spends significant time with the children.  The Hortis/Valento formula obligates a parent to pay guideline child support only for the time periods that the other parent has physical custody of the children.  Valento v. Valento, 385 N.W.2d 860, 862 (Minn. App. 1986), review denied (Minn. June 30, 1986); Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985); see also Tweeton v. Tweeton, 560 N.W.2d 746, 748-49 (Minn. App. 1997) (holding that child support obligation is to be allocated between parents where one parent awarded sole physical custody but the physical custody arrangement provides for “a significant amount of physical care by each parent”), review denied (Minn. May 28, 1997). 

            The supreme court recently explained, however, that 

Hortis/Valento is not to be applied in circumstances of sole physical custody, absent findings of grounds for deviation from the guidelines under Minn. Stat. § 518.551, subd. 5(i).

 

Rogers v. Rogers, 622 N.W.2d 813, 821 (Minn. 2001).  Minn. Stat. § 518.551, subd. 5(i) (2000), creates the rebuttable presumption that guidelines support is appropriate and requires district courts to make written findings explaining how deviation from the guidelines serves the best interests of the child.  Id. 

            Respondent has “primary” physical custody of the children, the child support magistrate ordered guidelines support, and there are no findings that a deviation from the guidelines would serve the best interests of the children.  We conclude that the findings support the child support magistrate’s decision to order guidelines support.

II.

            Appellant contends that, because child-care costs have decreased, the child support magistrate erred by failing to eliminate his child-care contribution. 

            A parent’s child-care contribution is determined by the formula provided in Minn. Stat. § 518.551, subd. 5(b)(E) (2000), which provides that costs are to be allocated “in proportion to each parent’s net income * * * .”  Id.  The dissolution judgment did not set a dollar amount of each party’s child-care costs because the parties did not submit evidence of the total amount of those costs.  Instead, the district court determined, based on the parties’ income, that appellant’s proportion of the costs was 43%.  The child support magistrate did not disturb that percentage.

On review of the modification order, the magistrate correctly observed that 

[t]he fact that [appellant] eliminates some child care costs  that were formerly incurred due to an adjustment in his visitation schedule does not satisfy his allocated portion of  actual child care costs.  It simply reduces the total costs to be apportioned.

 

A comparison of the parties’ net incomes shows that appellant’s proportion of the child-care costs is at least 43%.  Accordingly, we conclude that findings support the child support magistrate’s decision to leave appellant’s proportion of the child-care cost obligation undisturbed.

III.

            Finally, appellant argues that the child support magistrate abused its discretion by awarding respondent $999 in bad-faith attorney fees.  A district court has discretion to award attorney fees “against a party who unreasonably contributes to the length or expense of the proceeding.”  Minn. Stat. § 518.14, subd. 1 (2000).   The child support magistrate found that, at the time appellant filed his May 2, 2000 motion to modify child support, his income had been reduced by only 1.4%, far short of the amount of decrease that would support modification.  See Minn. Stat. § 518.64, subd. 2(b)(1) (2000) (providing presumption of substantial change in circumstances and a rebuttable presumption that such a change renders an existing support award unreasonable and unfair, if guidelines support under current circumstances is both 20% and at least $50 different from existing support amount).  

The child support magistrate also found that, despite appellant’s claim that he spent more time with the children, at the time he filed the May 2 motion, he decided to spend less time with the children.  The magistrate found that respondent incurred the expense of responding to the motion.  The findings of fact support the conclusion that appellant bought his May 2, 2000 motion in bad faith.  We conclude that the child support magistrate did not abuse its discretion by affirming the attorney fee award.

            Respondent argues that she is entitled to bad-faith attorney fees on appeal.  This court may, pursuant to Minn. R. Civ. App. P. 138, award attorney fees if an appeal delays proceedings on a judgment of the district court and appears to have been taken merely for delay.  Id.  After a careful review of the record, we are satisfied that this appeal was not brought solely to delay proceedings.  Respondent’s motion is denied.

Affirmed; motion denied.