This opinion will be unpublished and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

C5-01-719

 

 

In Re the Marriage of:

 

Daniel Lee Taylor, petitioner,

Appellant

 

vs.

 

Shelley Ann Taylor,

Respondent.

 

Filed October 23, 2001

Affirmed

Lansing, J.

 

Washington County District Court

File No. F8953311

 

 

Kevin K. Shoeberg, Kevin K. Shoeberg, P.A., Suite 600, Woodbury Business Center, 1890 Wooddale Drive, Woodbury, MN 55125 (for appellant).

 

Michael C. Hager, 529 South Seventh Street, Suite 420, Minneapolis, MN 55415 (for respondent).

 

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Harten, Judge.†

U N P U B L I S H E D†† O P I N I O N

LANSING, Judge†

Daniel Taylor appeals the district courtís denial of his motion to modify child support, contending that the courtís findings are not supported by the record and that the court erred by not finding a substantial change in circumstances.† Because the record adequately supports the district courtís finding that Daniel Taylor continued to have income available to him equivalent to his previously imputed income, the court did not abuse its discretion in denying modification.† We affirm.††

F A C T S

††††††††††† The district court entered judgment in Daniel and Shelley Taylorís dissolution action in April 1999.† Since that time the Taylors have been involved in a continuing and costly struggle over child support.

The dissolution judgment ordered Daniel Taylor to provide monthly support of $656.25 for the Taylorsí three children and to pay $2,400 in arrearages.† The support amount was based on imputed income.† The district court found that Daniel Taylor was the owner of Oakley Contracting, Inc, a landscaping, building repair, and snowplowing business.† The court further found that Daniel Taylor had not filed income tax returns for five years, had systematically paid his employees through a barter system, and had paid personal expenses with corporate funds.† The court concluded that Daniel Taylorís self-generated income statements and cancelled checks were unreliable evidence of his income, and, relying on his age, health, and employment history, found that he had the capacity to earn a net monthly income of $1,875.†

In late May 1999, Daniel Taylor was involved in a serious accident that required several weeks of hospitalization followed by an extended period in a full body cast.† On Daniel Taylorís motion to suspend child support, the court suspended his obligation for six months, effective June 1, 1999.† At the expiration of the suspension period on December 1, 1999, Daniel Taylorís child-support obligation automatically resumed at the rate of $656.25 per month.† Shelly Taylor, the childrenís physical custodian, took a second job as a waitress to provide support for the children both before the accident when Daniel Taylor failed to make full and timely child-support payments and during the suspension of the payments when he was unable to provide support.

††††††††††† On December 28, 1999, Daniel Taylor moved the district court to further suspend his child-support obligation on the ground that his injury continued to prevent him from working.† He testified that his doctor had restricted him from lifting more than ten pounds.† Following the hearing, he submitted a doctorís statement indictating a continuing inability to work.† He also submitted a self-generated income statement to show that Oakley Contracting, Inc. was not earning profits.† Invoices, all bearing the same date, showed Oakley Contracting had income of $5,267 for November and December, 1999.† More than half of that income, however, had been paid to Daniel Taylorís girlfriend, Marigale Prokop, with whom he resides.† He provided no evidence of cancelled checks to Prokop or the other individuals who he claimed were subcontractors for his snowplowing work and received the remaining income.

Shelley Taylor submitted an affidavit stating that she had seen Daniel Taylor on numerous occasions between June and December, 1999, hauling hay to customers, and, in mid-December she observed him plowing a grocery store parking lot.

After reviewing the exhibits, affidavits, and testimony, the district court found that Daniel Taylor had sufficient income from Oakley Contracting, Inc. to resume his child-support obligations.† In support of this finding, the court held that the money Prokop received from Oakley Contracting was attributable to Daniel Taylor as the owner of Oakley Contracting.†

††††††††††† Daniel Taylor appealed and this court reversed and remanded with instructions to treat Daniel Taylorís request to suspend child support as a motion for modification of child support.† Taylor v. Taylor, C9-00-728, (Minn. App. 2000).† On remand, the district court reaffirmed its original findings and concluded that Daniel Taylor had not shown a substantial change in circumstances that made the existing child-support obligation unreasonable or unfair.† Daniel Taylor appeals from that determination.

D E C I S I O N

Generally, the district court has broad discretion in determining whether to modify child-support orders.† Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999).† A reviewing court will reverse the determination only if the district court ďabused its broad discretion by making a clearly erroneous conclusion that is against the logic and the facts on [the] record.Ē† Id. (quotation omitted).† Modification is warranted under Minn. Stat. ß 518.64 if the moving party shows a substantial change in circumstances that makes the existing child-support obligation unreasonable and unfair.† Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996) (citations omitted).† When ruling on a motion to modify a child-support obligation, the district court must make particularized findings to show that the relevant statutory factors have been taken into account.† Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987).††

To prevail on his motion for modification, Daniel Taylor had the burden of showing that his circumstances had substantially changed from the circumstances underlying the original child-support order and that the monthly $656.25 payment had become unreasonable or unfair.† Although the courtís findings are minimal, the evidence and the findings are sufficient to support its holding that Daniel Taylor did not meet the burden necessary to support a modification of his child-support obligation under Minn. Stat. ß 518.64.

First, the court had minimal evidence of Daniel Taylorís income and conflicting evidence of his ability to work.† The court was forced to make credibility determinations and was free to consider the testimony and evidence in the entire proceedings in assessing credibility and assigning significance to the evidence and statements.† Nelson v. Lutheran Mut. Life Ins. Co., 311 Minn. 527, 529, 249 N.W.2d 445, 447 (1976) (factfinder must choose between conflicting evidence and diverse inferences that may be drawn from the evidence).† The district court had previously found that Daniel Taylor produced unreliable and insufficient evidence of his net income; that he had not filed state or federal income tax returns since 1994; that his corporation had not issued W-2 or 1099 forms; that he had failed to maintain records showing employee hours, wages, and payments; that he often paid his employees through a barter system; and that he often paid his personal expenses with corporate funds.††

The evidence of income that Daniel Taylor supplied in support of his motion for modification was similarly incomplete and raised inferences of collusion or improper payment.† Daniel Taylor submitted only a self-generated income statement showing income from snowplowing contracts and showing that he had paid out over half the profits for services connected with snowplowing to Prokop, who lived with him.† The remainder of the profits were allocated to two other individuals, who apparently performed snowplowing.† The record does not indicate that Prokop did any of the actual snowplowing, and at oral argument Daniel Taylorís attorney indicated that Daniel Taylor was not claiming that she did.† Nevertheless, Daniel Taylorís invoice indicated that Prokop was to receive a total of $2,860 for 71.5 hours in November and December, and the other two individuals, who allegedly did the snowplowing, reported 35 hours of work combined and received a total of $2,407 for labor and expenses.† The income statement is further undermined by the absence of any evidence of actual payment to Prokop or the other two individuals.†

On this record, the district court did not err in attributing the income allocated to Prokop to Oakley Contracting, Inc., and to Daniel Taylor as the sole owner of the corporation.† The evidence included testimony that Daniel Taylor was doing at least some of the snowplowing himself.† But aside from that evidence, Daniel Taylor failed to adequately demonstrate that the payments to his girlfriend were bona fide business expenses or that the income allocated to her on the corporationís income statement was actually paid out.† Thus, the court could reasonably impute the retained earnings to Daniel Taylor.† Although more particularized findings would have been helpful in reviewing the courtís determination, the court cannot generate findings in the absence of evidence.† The court properly observed that the litigation continues to absorb resources that could be more productively directed at the familyís grave financial circumstances.†

The district court did not make a clearly erroneous finding that was against the facts in the record or an illogical conclusion on the inferences drawn from those facts.† Consequently, the district court did not abuse its discretion in declining to modify Daniel Taylorís child-support obligation.

††††††††††† Affirmed.