This opinion will be unpublished and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

C3-01-1948

 

In re:

 

Ted A. Pavlovich, petitioner,

Appellant,

 

vs.

 

Dawn E. Pavlovich,

Respondent.

 

Filed July 9, 2002

Affirmed; motion granted

Lansing, Judge

 

St. Louis County District Court

File No. F598601089

 

David R. Oberstar, Fryberger, Buchanan, Smith & Frederick, P.A., 700 Lonsdale Bldg., 302 West Superior St., Duluth, MN  55802 (for appellant)

 

Daniel B. Johnson, Daniel B. Johnson & Assoc., P.A., 226 East Myrtle St., Stillwater, MN  55082-5033 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            This appeal from the district court’s denial of a motion to modify a marital dissolution judgment raises issues relating to income determination for purposes of spousal maintenance and issues relating to visitation with a minor child.  Because the district court did not misapply the law, abuse its discretion, or make a decision against logic and the facts of record, we affirm.

F A C T S

            Ted and Dawn Pavlovich’s 1999 amended dissolution judgment provided that Dawn Pavlovich would have physical custody of the Paloviches’ two younger children.  The oldest child has now reached the age of majority.  For purposes of computing child support and spousal maintenance, the district court used a three-year average of Ted Pavlovich’s salary, commissions, and bonuses because his income fluctuates substantially from year to year.  The judgment provided for spousal maintenance of $5,000 a month.

            In the course of the dissolution, the family struggled with significant interpersonal problems that severely affected visitation.  In an effort to reduce the psychological and emotional stress on their son, the Pavloviches agreed that Ted Pavlovich would have reasonable visitation that would begin at a time recommended by their son’s doctor.  That doctor, a licensed social worker, and their son’s consulting psychologist have recommended that visitation not yet begin.

            Following entry of the dissolution judgment, the Pavloviches have continued to experience interpersonal problems resulting in several postjudgment motions including a previous motion to reduce or terminate spousal maintenance.  In this appeal from the district court’s order denying modification of the dissolution judgment, Ted Pavlovich challenges the district court’s findings that he failed to show a change in circumstances that made the maintenance award unreasonable or unfair and also challenges the denial of visitation with his son.

D E C I S I O N

I

            As a preliminary matter, we address Dawn Pavlovich’s motion to strike two affidavits and references to the affidavits from Ted Pavlovich’s brief.  In partial resolution of a pending motion, the Pavloviches stipulated that they would withdraw the affidavits, and the district court, by order, removed the affidavits from the district court file.

The record on appeal is “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any[.]”  Minn. R. Civ. App. P. 110.01.  Except in rare circumstances, not involved here, appellate courts will not consider material outside the record on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); see Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987) (stating matters outside the record “must be stricken”).  References in a brief to extra-record material stricken from an appendix are also stricken.  Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 543-44 n.7 (Minn. 2001).  Because they are not in the district court file, we grant Dawn Pavlovich’s motion to strike the affidavits and the references to them.

II

            Whether to modify maintenance is discretionary with the district court and requires the moving party to show both a substantial change in circumstances and that the change makes the existing award unreasonable and unfair.  Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997); see Minn. Stat. § 518.64, subd. 2 (Supp. 2001) (addressing maintenance modification).  Ted Pavlovich’s motion for reduction or elimination of his maintenance rests on four separate claims—that his income has decreased, his expenses have increased, Dawn Pavlovich’s expenses have decreased, and Dawn Pavlovich’s medical condition no longer precludes her full-time employment.  The record does not establish that the district court erred in rejecting each of these claims.

The district court concluded that because final figures for Ted Pavlovich’s 2001 income were unavailable at the time of the hearing in August 2001, it was premature to address whether Ted Pavlovich’s income had decreased.  The district court stated that “[f]or the second year in a row, [a maintenance question] is here upon [Ted Pavlovich’s] allegation of an anticipated change of circumstances.”  (Emphasis in original.)  The district court further stated that after Ted Pavlovich’s prior motion to reduce or terminate maintenance, “[his] income did not decline, but went up.”  The district court stated it was “perfectly willing” to reduce maintenance upon a showing that Ted Pavlovich’s income had “actual[ly]” been “substantially reduced.”

Although Ted Pavlovich argues that his 2001 income had decreased significantly by September 12, 2001, when he made his motion, the district court acted within its discretion by deferring action until all information was complete.  Ted Pavlovich has presented evidence of a reduction in salary and his current production commission.  He predicts that he will not receive a manager’s bonus or restricted stock bonus for 2001, but the district court was unwilling to accept this prediction in light of his past prediction that did not eventuate.  Further, Dawn Pavlovich’s brief presents a credible calculation that demonstrates Ted Pavlovich’s income has increased over the amount stated in the amended judgment.  She contends that the year-to-date net pay reflected on the paystub presented to the court was inaccurately low because of overwithholding taxes, omitting voluntary draws, and omitting income garnished for child support.  These fact issues can be fully argued when more comprehensive income information is available.

            Ted Pavlovich also claims his expenses have increased since entry of the amended judgment from $5,833 a month to $8,864 a month.  The amended judgment, however, states that monthly expenses of $5,833 are “inflated.”  Ted Pavlovich has not adequately demonstrated how his currently claimed expenses, which are over $3,000 higher, can be reasonable.  Furthermore, he has failed to provide valid reasons for the new expenses—particularly the increased consumer debt.  The court did not abuse its discretion in disregarding increased expenses as a basis for modification.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating appellate courts defer to district court credibility determinations). 

            Ted Pavlovich next argues that Dawn Pavlovich’s expenses have substantially decreased.  The record demonstrates that her monthly expenses for herself and the dependent children have decreased from $9,237 a month to $7,801 a month.  But even at this decreased level of expenses, she still has a $528 monthly deficit before paying taxes, which she alleges to be $1,158 a month.  The resulting monthly deficit shows that the alleged decrease in Dawn Pavlovich’s expenses is insufficient to represent a substantial change that makes her existing maintenance award unreasonable and unfair.  Cf. Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989) (stating maintenance is awarded to meet need).  We reject Ted Pavlovich’s argument that under Rask v. Rask, 445 N.W.2d 849 (Minn. App. 1989), Dawn Pavlovich’s claimed expenses should be reduced by the amount of her housing expense.  Unlike the record in Rask that contained “no evidence” of when the housing expense would begin, the record in this case substantiates an actual housing cost that will be incurred.

            Finally, we find no abuse of discretion in the district court’s rejection of the claim that Dawn Pavlovich’s medical condition no longer precludes her from working.  The district court stated that the medical aspects of the case had “already [been] tried[,]” that “[a] layman’s observation doesn’t change that[,]” and that a reduction of maintenance based on an alleged betterment of Dawn Pavlovich’s medical condition was “premature.”  The layman’s opinion referred to by the court is apparently the surveillance documentation submitted by private investigators retained by Ted Pavlovich.  Ted Pavlovich also provided a medical review conducted by an orthopedic surgeon who did not see Dawn Pavlovich, did not consult with her doctor, and did not receive a complete set of her medical records.  Neither the surveillance records nor the medical review demonstrate new evidence that substantially conflicts with or negates Dawn Pavlovich’s current medical records from her treating physician, and, thus, they fail to satisfy the substantial-change threshold.

            Ted Pavlovich’s remaining arguments on Dawn Pavlovich’s medical condition relate to the court’s initial findings in the 1999 amended judgment or to testimony in the underlying hearing.  We have not been provided with a transcript of that trial.  Even if we had a transcript, the belated challenges of the unappealed judgment are untimely and impermissibly collateral.  See Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966) (stating that whether or not the decision in the first order is correct, it is still final after the time for appeal has expired).

III

            Ted Pavlovich challenges the denial of his motion for visitation with the Pavloviches’ son.  A district court is required to allow visitation that is in the best interests of the child.  Minn. Stat. § 518.175, subd. 1 (Supp. 2001).  The court has “broad discretion to determine what is in the best interests of the child in the area of visitation and its determination will not be overturned absent an abuse of discretion.”  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995) (citing Manthei v. Manthei, 268 N.W.2d 45, 46 (Minn. 1978)).  If the court finds, after a hearing, that parenting time with the child is likely to endanger the child’s physical or emotional health or emotional development, the court shall restrict parenting time or may deny it entirely as the circumstances warrant.  Minn. Stat. § 518.175, subd. 1.

            The marital dissolution judgment included a provision stating that Ted Pavlovich’s visitation with their son would begin at a time recommended by Dr. Gary Davis.  This provision followed a pretrial recommendation by a licensed social worker that the Pavlovich children not be forced to see their father.  The social worker also recommended a psychological assessment of Ted Pavlovich before any visitation.  In the temporary order, the Pavloviches stipulated to consulting with a psychologist and following the psychologist’s recommendation for visitation.  Ted Pavlovich states that the provision in the judgment deferring to Dr. Davis also resulted from a stipulation.  In November 1999, Dr. Davis recommended that visitation be discontinued and that Ted and Dawn Pavlovich attend counseling to facilitate their children’s adjustment.

In December 2000, Ted Pavlovich moved to schedule visitation.  The Pavloviches resolved the motion by stipulating to an order in January 2001 that required psychological counseling for both parents, a diagnostic assessment of their son by a licensed child psychologist, and that the parents would follow the visitation recommendation of their son’s psychologist.  In March 2001, the psychologist strongly recommended that the Pavloviches’ son not have contact with his father.  In April, Ted Pavlovich filed a motion to require that all of the children and both parents undergo evaluation and counseling with a qualified psychological professional.  The district court denied the request but urged the Pavloviches to consider conjoint divorce counseling.

In August 2001, Ted Pavlovich again moved to establish visitation with their son, and it is the denial of that motion which is challenged in this appeal.  According to the psychologist, anticipation of discussing visitation caused the Pavloviches’ son to suffer symptoms the psychologist said “closely resemble[d] a panic attack and represent[] the extreme amount of stress that [their son] experiences when he worries about visitation.”

We conclude that the district court did not abuse its discretion in denying visitation when two separate psychologists and a licensed social worker recommended no visitation, the Pavloviches had stipulated to an order requiring them to follow the recommendations of the second psychologist, and when Ted Pavlovich has submitted no evidence by a competent professional that visitation is in the best interests of their son.

            The record is unmistakably clear that the Pavloviches’ son does not currently want visitation with his father and that forcing visitation is not currently in his best interests.  But the record is equally clear that the son’s resistance to seeing his father has resulted from the emotional strife fostered by the dissolution.  Dawn and Ted Pavlovich have demonstrated that they are capable of making responsible decisions for the welfare of their children.  Each of them has also acknowledged respect for the other’s parenting abilities.  As the district court observed, it is necessary for the welfare of their son that they jointly pursue a path to establish father-son visitation.  The psychological evaluations of both parents have recommended conjoint counseling to address visitation issues.  Ted Pavlovich has the option to request conjoint counseling to facilitate visitation issues.  The district court has urged the Pavloviches to seek counseling and retains the power and the responsibility to continue to monitor the progress of their son’s counseling and the parents’ cooperation to assure that father-son visitation is accomplished in an orderly and timely process consistent with their son’s best interests.

            Affirmed; motion granted.