This opinion will be unpublished and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

C3-01-1240

 

 

Julie Visser, petitioner,

Appellant,

 

vs.

 

John Scoles,

Respondent.

 

 

Filed May 21, 2002

Affirmed

Halbrooks, Judge

 

 

Ramsey County District Court

File No. F80051231

 

 

Mary Catherine Lauhead, 3985 Clover Avenue, St. Paul, MN 55127 (for appellant)

 

James C. Lofstrom, Lofstrom & Lowe, P.A., 4635 Nicols Road, Suite 206, Eagan, MN 55122 (for respondent)

 

 

 

††††††††††† Considered and decided by Peterson, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

††††††††††† In this child support proceeding, appellant alleges that the district court erred by (1) excluding tax refunds, and holiday and vacation pay from respondentís net income; (2) disregarding appellantís inability to meet her own monthly expenses; (3) deviating downward from the child support guidelines without making findings pursuant to Minn. Stat. ß 518.551, subd. 5(c) (2000); (4) improperly determining respondentís child support arrearage; and (5) denying appellantís request to reopen the record to present additional evidence.† Because we conclude that the court properly determined respondentís net income and appellantís financial needs, had valid statutory grounds for a downward deviation in child support, and properly calculated respondentís child support arrearage, we affirm the initial child support award.† Because the record on appeal to the district court is limited to the materials presented to the child support magistrate, we affirm the district courtís denial of appellantís request to introduce new evidence.†

FACTS

††††††††††† Appellant Julie Visser and respondent John Scoles lived together in the fall of 1991.† Their child, Z.V., was born on July 19, 1992.† Respondent was incarcerated from 1992 until August 1997 for an offense unrelated to this appeal.† While in prison, respondent married another woman and they have one child, J.S.,who was born on November 29, 1992.†

On June 30, 2000, respondent first learned that he had a child with appellant.† Although he initially denied paternity of Z.V., following genetic testing, respondent now concedes that he is Z.V.ís father.

Appellant has sole physical and legal custody of Z.V.† She brought an action under Minn. Stat. ß 257.66 (2000) to obtain child support for Z.V.† Respondent sought a downward deviation from the child support guidelines based on his financial obligations to also provide support for J.S.† The child support magistrate ordered respondent to pay child support, but set the amount at a figure lower than the guideline amount.† Appellant sought review of the award in district court, and the court affirmed the order.† This appeal follows.†

D E C I S I O N

We review a district courtís order confirming a magistrateís award of child support under an abuse-of-discretion standard.† Davis v. Davis, 631 N.W.2d 822, 826 (Minn. App. 2001).† The record on appeal to this court is limited to what was provided to the district court for its review.† Id.† Because appellant did not provide the district court with a transcript of the proceedings before the magistrate, the transcript is not part of the record on appeal to this court.† Id.

1.† †††††† The District Court Did Not Err in its Calculation of Respondentís Net Monthly Income.†

 

A courtís determination of net income for purposes of child support will be affirmed on appeal if it has a reasonable basis in fact and is not clearly erroneous.† State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999).† Appellant argues that the court erroneously excluded ďbankedĒ vacation pay of $6,916 from respondentís monthly income.† According to appellant, respondentís employer deducts vacation pay from respondentís salary and ďbanksĒ it until respondent takes vacation time.† The court found that respondent had not received money from this fund because he had not taken any vacation.† The courtís decision to exclude the banked amount from its calculation of respondentís income is appropriate, as ď[n]et income is properly calculated based upon money available to the taxpayer.Ē† Lenz v. Wergin, 408 N.W.2d 873, 876 (Minn. App. 1987) (emphasis in original).† The record supports the district courtís finding on this issue.

Appellant also asserts that the court erred by not including respondentís tax refunds in his 2000 net income.† A court may calculate net income by using a tax table to compute standard deductions or may deduct amounts withheld and add amounts refunded in a given year.† Id.† In this case, the court employed the latter method.† While appellant computes respondentís net income using tax tables, the courtís method was not an abuse of discretion, as both are acceptable.† Id.† Appellant cites Koury v. Koury, 410 N.W.2d 31, 32 (Minn. App. 1987), for the proposition that tax refunds should be included in net income.† Koury states, however, that tax refunds are only considered net income in the year in which they are received.† Id.† Because respondent did not receive his 2000 tax refund until 2001, the court appropriately excluded it from his 2000 net income.†

2.† †††††† The District Court Awarded Appellant Sufficient Funds for Child-Care Costs.

 

Appellant claims that the district court awarded her insufficient funds for child-care costs.† The court found that appellantís net monthly income is $3,022.30 and that her monthly living expenses, excluding child-care costs, are $2,005.† The district court found that appellant has monthly child-care costs of $458,[1] $344 of which is allocable to both parties.† As a result, the court ordered respondent to pay $127 per month for child-care costs.† Because respondentís child-care contribution follows the formula set out in Minn. Stat. ß 518.551, subd. 5 (Supp. 2001), for the amount of those costs attributable to both parties, the court acted within its discretion in determining the respondentís monthly child-care obligation.†

3.† †††††† The District Court Did Not Err in Making its Child Support Award.††

 

Minn. Stat. ß 518.551, subd. 5f (2000), provides that

[t]he needs of subsequent children shall not be factored into a support guidelines calculation under subdivision 5.† The fact that an obligor had additional children after the entry of a child support order is not grounds for a modification to decrease the amount of support owed.† However, the fact that an obligor has subsequent children shall be considered in response to a request by an obligee for a modification to increase child support.†

 

The statutory language does not directly apply to the situation in this case, as appellant is challenging the amount of an initial child support award rather than asking for a modification of child support.† Nevertheless, the district court has inherent discretion to set support at an equitable amount.††

Appellant argues that, when deviating from the guidelines, a court must make specific findings justifying a lesser award pursuant to Minn. Stat. ß 518.551, subd. 5(c) (2000), which lists factors a court should consider in making a support award, including the partiesí income and resources, and the childrenís financial needs, physical and emotional conditions, and standard of living.† Minn. Stat. ß 518.551, subd. 5(c), addresses deviations from the child support guidelines generally, but Minn. Stat. ß 518.551, subd. 5f (2000), specifically addresses child support computations in cases of subsequent children.† The court is required to determine an obligorís total ability to contribute to the support of dependent children, the total needs of all of the obligorís children, and to make specific findings relating to the needs of the child who is the subject of the action.†

In addressing whether respondent could make the $714 monthly support payment for Z.V., the court properly followed the Minn. Stat. ß 518.551, subd. 5f, framework.† It made the following findings concerning respondentís financial circumstances:

†††††††††† Respondentís and respondentís spouseís net monthly income: †††††††† $ 3,346

†††††††††† Respondentís and respondentís spouseís household expenses:††††††††† $ 3,724†

†††††††††† Respondentís net monthly shortfall: ††††††††††††††††††††††††††††††††††††††††††††††††††††††† $ 378

 

The court then discounted respondentís discretionary expenses for cable television, dining out, and recreation, thereby reducing the shortfall to $174.† The court assessed the needs of respondentís children and found that J.S.ís monthly needs are $820.† Expenses for appellant and Z.V. were determined to be $2,005 per month in comparison with appellantís monthly income of $3,002.30.† Therefore, the court found that appellant was able to meet the needs of Z.V.†

Appellant claims that Z.V. has special needs that justify an upward deviation in child support because he has esotropia estribiismic amblyopia, an eye condition that requires Z.V. to wear glasses and attend semi-annual appointments with an ophthalmologist.† Although we acknowledge that Z.V.ís eye condition results in an expense to appellant, the district courtís review of the magistrateís findings is limited to the record before the district court.† A transcript of the hearing before the magistrate was not before the district court, and the district court accepted the magistrateís finding that Z.V. did not suffer from special psychological or educational needs.† We cannot review a matter that the district court was unable to address due to the lack of a transcript.† We, therefore, accept the conclusion that Z.V. does not suffer from special needs warranting additional support.†

Finally, the court calculated respondentís child support obligation to Z.V. by dividing the $174 shortfall equally between his two children.† This division reduced respondentís child support obligation to Z.V. by $87.† Thus, respondent was ordered to pay $654 per month for the support of Z.V.† Because the courtís findings have a reasonable basis in fact, they are not clearly erroneous.

4.† †††††† The District Courtís Award of Past Support Was Not an Abuse of Discretion.†

 

A determination of an amount owed for past support under Minn. Stat. ß 257.66, subd. 4 (2000), is reviewed under an abuse-of-discretion standard.† LaChapelle v. Mitten, 607 N.W.2d 151, 166 (Minn. App. 2000), review denied (Minn. May 16, 2000).† Minn. Stat. ß 257.66, subd. 4, states that

[t]he court shall limit the parentís liability for past support of the child to the proportion of the expenses that the court deems just, which were incurred in the two years immediately preceding the commencement of the action.† In determining the amount of the parentís liability for past support, the court may deviate downward from the guidelines if:

 

(1) the child for whom child support is sought is more than five years old and the obligor discovered or was informed of the existence of the parent and child relationship within one year of commencement of the action seeking child support.

 

The statute limits but does not mandate respondentís support obligation to expenses incurred in the two years before the commencement of the action.† Here, appellant commenced the action by filing an affidavit of paternity on November 2, 2000.† Although the court had discretion to award child support dating back to November 2, 1998, the court chose to use January 1999 as the date support commenced.† The courtís decision is within its discretion.†

††††††††††† In addition to disputing the date that support should commence, appellant challenges the monthly amount of the award.† The court awarded appellant $654 per month for 2000 and $500 per month for 1999, noting that respondentís spouseís 1999 income was significantly less than her 2000 income.[2]† Appellant alleges that she should receive $974 per month for 2000 and $1,030 per month for 1999.†

††††††††††† Appellantís claim is not meritorious, as the statute allows the court to deviate from the guidelines in awarding back child support for a child over the age of five if an obligor first learned of the childís existence within one year of the action for child support.† Minn. Stat. ß 257.66, subd. 4(1).† Z.V. is over five years old.† Respondent did not learn of his existence until late June 2000, approximately four months before appellant completed the affidavit of paternity.† Given appellantís income, we cannot say that the amount of this award is an abuse of discretion.††††††††††††††††††††††††

5.† †††††† The District Court Did Not Err in Refusing to Reopen the Record on Review.†

 

††††††††††† Appellant contends that it was error for the district court to deny her motion to reopen the record for the admission of respondentís 2000 W-2s and pay stubs.† Appellant asserts that this information would have allowed her to ďhave more effectively integrated her budget and expensesĒ and enabled her to make a better presentation to the court.† Appellant requested that respondent provide

[a]ll federal and state income tax returns for the tax years 1997 to date, inclusive, and documents showing any estimated taxes paid for tax years for which tax returns have not yet been filed * * * .

 

(Emphasis in original.)† Respondent provided tax returns for 1998, 1999, and 2000 and W-2s for 1998.† He failed to provide a W-2 for 2000, but did provide his final pay stub from 2000.†

The decision to admit or exclude evidence is discretionary with the district court.† Kroning. v. State Farm Auto Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).† Here, the only prejudice appellant claims she suffered as a result of this decision was that she was unable to make as complete a budget presentation as she would have liked.† But respondentís income is irrelevant to appellantís expenses.† As appellant suffered no prejudice from respondentís failure to produce the evidence, the district court did not err in refusing to reopen the record.†

Similarly, appellant asserts that the district court erred by not allowing her to present evidence on appeal relating to a court-ordered requirement that respondent secure his child support obligation with a life insurance policy.† As no transcript of proceedings before the district court exists, we are unable to determine that appellant actually made that request.† In the absence of a record, we will not assume the district court abused its discretion in electing not to reopen the record.†

††††††††††† Affirmed.†

 

 

 



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

[1]† On appeal, appellant claims that she has $850/month in child-care costs.† Exhibit 2, which was before the court, does not reflect this amount.†

[2]† The order states that appellantís spouseís income was less in 1999 than 2000.† This misstatement appears to be an inadvertent error.† The court must have been referring to respondentís spouse, as appellant is unmarried.† Moreover, respondentís spouseís income was significantly less in 1999 than 2000.† Cf. Minn. R. Civ. App. P. 110.05 (regarding correction of the record).†