This opinion will be unpublished and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

C0-01-1910

 

 

In re:

 

Holly M. Erickson, petitioner,

Respondent,

 

vs.

 

Patrick R. Oman,

Appellant.

 

Filed June 4, 2002

Affirmed

Lansing, Judge

 

St. Louis County District Court

File No. F599350133

 

 

Bruce R. Williams, Law Offices of Bruce Williams, 409 Pierce Street, P.O. Box 705, Eveleth, MN† 55734 (for respondent)

 

James Perunovich, Law Offices of James Perunovich, 402 East Howard Street, Suite 7, Hibbing, MN† 55746 (for appellant)

 

††††††††††† Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Poritsky, Judge. *

 

 

 

U N P U B L I S H E D†† O P I N I O N

 

LANSING, Judge

 

††††††††††† On appeal from an order denying his motion to modify child support, Patrick Oman asserts that three errors require reversal:† the inclusion of overtime pay in the calculation of his income, the failure to consider his financial obligation to subsequently born children, and the issuance of the order before receipt of the magistrate-hearing transcript.† The record establishes that overtime pay was not considered in computing child support, the consideration of subsequently born children was consistent with statutory requirements, and the absence of a transcript was neither adequately proved nor prejudicial.† We affirm.

F A C T S

 

††††††††††† Holly Erickson and Patrick Oman had two children before their six-year relationship ended in early 1999.† In a paternity-and-support proceeding, the district court issued an order on June 18, 1999, setting Omanís child-support obligation at $692 a month plus one-half the childrenís day-care expenses.† Erickson and Oman stipulated that Omanís net monthly income was $2,308.† The court calculated the child-support obligation by applying the statutory child-support guidelines to the stipulated income.† The order did not indicate whether the stipulated $2,308 net monthly income included overtime income.

††††††††††† Oman began a new relationship and twins were born to that relationship in June 2000.† When the district court issued a temporary order in March 2001 that required Oman to provide support for the twins, Oman moved to modify the June 18, 1999, child-support order.† At the time of the hearing on Omanís motion to modify, he was paying Erickson $747 per month in child support, which represented the original $692 award plus a cost-of-living adjustment.† The child-support magistrate denied Omanís modification motion because the obligation amount was already below the statutory guidelines, Omanís requested reduction would result in a 20% decrease from his statutory-guidelines obligation, and the decrease would result in an amount lower than Omanís support obligation for his subsequently born children.

Oman appealed the decision of the child-support magistrate to the district court and filed a transcript request on August 29, 2001.† The district court filed an order on September 27, 2001, affirming the child-support magistrateís order.†

Oman appeals, arguing that the district court erred by (1) including overtime wages in calculating his child-support obligation, (2) failing to modify his support obligation in light of his obligation to his subsequently born children, and (3) issuing an order before receiving the transcript of the magistrate proceeding.† Erickson did not file a brief in response to Omanís appeal, and we proceed pursuant to Minn. R. Civ. App. P. 142.03.

D E C I S I O N

 

A district courtís decision on child-support issues is discretionary, and, on appeal, our review is conducted on an abuse-of-discretion standard.† Rogers v. Rogers, 622 N.W.2d 813, 822 (Minn. 2001).† When reviewing a child-support magistrateís order, we apply the same standard of review that we apply to an order issued by a district court judge.† Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000).† Legal questions are reviewed de novo.† Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997).† Findings of fact are not set aside unless clearly erroneous.† Minn. R. Civ. P. 52.01.

I

Overtime income is included in the calculation of net income for purposes of setting a child-support obligation only when overtime work has been regular and periodic.† Minn. Stat. ß 518.54, subd. 6 (2000) (defining income as ďany form of periodic paymentĒ);† Desrosier v. Desrosier, 551 N.W.2d 507, 509 (Minn. App. 1996) (concluding that district court abused its discretion by excluding from obligorís income bonuses that were dependable form of periodic payment).† On a motion for modification of child support, Oman bears the burden of showing that the overtime employment began after the entry of the existing support order and current child-support payments are at least equal to the amount provided in the guidelines based on regular, non-overtime income.† See Minn. Stat. ß 518.64, subd. 2(c)(2) (Supp. 2001).

In the order denying modification, the child-support magistrate stated that it was unclear whether the determination of net income in the previous child-support obligation included overtime pay.† The magistrate then found that because Oman had a history of working overtime predating the entry of the original order setting child support, his overtime pay should have been included.† The record provides no basis for a finding that Omanís overtime predated the entry of the original order, thus, Oman correctly asserts that the finding is error.

Nevertheless, the error has no consequence.† Cf. Minn. R. Civ. P. 61 (requiring harmless error to be ignored).† In denying Omanís motion to modify his child-support payments, the child-support magistrate relied on the partiesí original, stipulated amount for Omanís net monthly incomeó$2,308.† Using this figure, the 30% statutory guideline for determining the child-support obligation, and the cost-of-living adjustment, Omanís child support is $747 per month.† Oman conceded in his affidavit, however, that his net monthly income is $2,536 which, when multiplied by the 30% statutory guideline, would make Omanís child-support obligation $760 per month, an amount that exceeds his current $747 monthly obligation.† The child-support magistrate noted that Omanís current net income, including overtime pay, was $2,730.† But that observation related only to whether Oman had the ability to pay a child-support obligation based on a net income of $2,308.† Because the magistrate did not rely on an income figure that included any overtime income, Oman has failed to demonstrate an abuse of discretion in calculating his income for purposes of deciding the motion.

II

Omanís second contention is that the district court erred in not considering his obligation to subsequently born children.† But ď[t]he 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.Ē† Minn. Stat. ß 518.551, subd. 5f (2000).† The statute only provides for consideration of the needs of subsequently born children in the event that the obligee seeks to increase child support.† Id.

Oman relies on Bock v. Bock, 506 N.W.2d 321 (Minn. App. 1993), to argue that a downward deviation should be permitted to account for his additional child-support obligation.† Bock, however, was superseded when the legislature added Minn. Stat. ß 518.551, subd. 5f, in 1998.† See 1998 Minn. Laws ch. 382, art. 1,†††††† ß 10.† Furthermore, Bock involved the circumstanceóan obligeeís motion to increase a child-support obligationóin which the statute permits consideration of subsequently born children.† Because Bock has been superseded by statute and is factually distinguishable, it does not provide authority for Omanís argument.† The magistrate acted in accordance with the statute, and Oman has failed to demonstrate an abuse of discretion.

III

The family court rules applicable to expedited child-support processes provide that the district court must file an order on a motion for review within 45 days of the later of the filing of a response, the receipt of a transcript, or the admission of new evidence.† Minn. R. Gen. Pract. 377.09, subd. 1 (effective July 1, 2001).† Oman filed a request for the transcript on August 29, 2001, and claims the district court had not yet received the transcript when it filed its order on September 27, 2001.

The district courtís September 27, 2001, order indicates that it based its decision on the file, record, and the proceeding in the matter.† Oman provides no evidence, other than the date of his request for the transcript, to show that the district court had not received the transcript before conducting its review of the child-support magistrateís order.

Furthermore, Oman points to nothing in the transcript that the district court overlooked that would warrant reversal of the child-support magistrateís order.† The transcript was fully available to Oman in formulating this appeal.† Although it goes without saying that the availability of the transcript is crucial to reasoned review, noncompliance with this expedited-procedure rule that has as its purpose the timely resolution of family matters does not result in automatic reversal.† Because Oman has not conclusively shown that the transcript was unavailable to the district court at the time of the review or that any unavailability prejudiced a right or resulted in error, we reject his request for reversal.† See Midway Ctr. Assocs. v. Midway Ctr. Inc., 306 Minn. 352, 256, 237 N.W.2d 76, 78 (1975) (stating that, to prevail on appeal, party must show both error and prejudice).

††††††††††† Affirmed.

 



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