This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In re the Marriage of:
William Jerome Bainbridge, petitioner,


Victoria Lynn Bainbridge,
n/k/a Victoria Lynn Christian,


Filed June 17, 2003

Reversed and remanded

Stoneburner, Judge


Hennepin County District Court

File No. 235688


Ronald B. Sieloff, Sieloff and Associates, P.A., Yankee Square Office III, Suite 214, 3460 Washington Drive, Eagan, MN 55122 (for respondent)


Patrick T. Skelly, Skelly & Capistrant, P.A., Suite 100, 1724 Selby Avenue, St. Paul, MN 55104 (for appellant)


            Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Minge, Judge.

U N P U B L I S H E D  O P I N I O N



            Appellant Victoria Lynn Christian challenges the district court’s denial of her motion to increase respondent William Jerome Bainbridge’s child-support obligation alleging that the district court erred by measuring the increase in Bainbridge’s income from the date of the last child-support order rather than from the date of the judgment that set Bainbridge’s current support amount.  We reverse and remand for consideration of whether the 11% increase in Bainbridge’s support obligation from the date of the last child-support order, when considered with increases from the date the support obligation was originally set, meets the presumption that the original order is unreasonable and unfair under Minn. Stat. § 518.64, subd. 2(b) (2002), and if so, whether Bainbridge has rebutted the presumption.



            The dissolution judgment entered in 1998 established respondent William Jerome Bainbridge’s child-support obligation for the parties’ three children at $1,381.95 per month.  The amount was determined by application of the Minnesota child-support guidelines to Bainbridge’s net monthly income from the United States Army, which was stipulated by the parties to be $3,948, an amount that included Bainbridge’s $850 housing allowance. 

            In May 2001, appellant Victoria Lynn Christian moved for an increase in child support to $1,859, based on her claim that Bainbridge’s income had substantially increased, making the current award presumptively unreasonable and unfair under Minn. Stat. § 518.64, subd. 2(b).  Bainbridge, in response to Christian’s motion, agreed that his income had increased, but alleged that the majority of the increase was due to an increased housing allowance due to relocation to a different state.  Bainbridge argued that the housing allowance should not be included in the computation of his net monthly income and countermoved for an order requiring Christian to pay one-half of his visitation expenses.  By order entered in September 2001, Christian’s motion for an increase in child support was denied.  The referee concluded that Bainbridge’s housing allowance, absent agreement of the parties, could not be included in the calculation of Bainbridge’s income and that the original agreement of the parties did not waive Bainbridge’s right to have future increases in his housing allowance excluded.  The referee found that without the increase in the housing allowance, there had not been a substantial increase in Bainbridge’s income that would render the current support order unreasonable and unfair.  The referee granted Bainbridge’s motion and ordered Christian to pay 50% of the children’s travel costs for Bainbridge’s parenting time.  On Christian’s motion for review, the district court affirmed the referee’s order without change. [1]  Christian did not appeal.

            On March 7, 2002, Christian brought another motion to increase Bainbridge’s child support based on increased earnings due to his promotion to major, effective March 1, 2002.  Christian alleged that, considering only the originally agreed-on housing allowance and Bainbridge’s actual tax obligation, Bainbridge’s income had increased 33.33% since his child-support obligation was established.  The referee again denied Christian’s motion, concluding that Bainbridge’s income had only increased 11% since Christian’s prior motion had been denied, and, therefore, no substantial change had occurred.  Christian filed a notice of review, alleging that the referee erred by failing to compare Bainbridge’s current income to his income at the time the support obligation was set.  Because Christian’s memorandum supporting the request for review was untimely, the district court purported to deny the notice of review, but the order addressed the merits de novo and affirmed the referee’s order.  This appeal followed.


            A district court is given broad discretion in setting child support.  Joneja v. Joneja, 422 N.W.2d 306, 308 (Minn. App. 1998).  This court will reverse a district court’s order regarding the modification of child support “only if we are convinced that the court abused its broad discretion” and reached a “conclusion that is against the logic and the facts on the record.”  Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999) (alteration original) (quotation omitted).  Only in such a case will an appellate court find an abuse of discretion.  Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (quotation omitted).

            Modification of child-support orders is governed by Minn. Stat. § 518.64, subd. 2, which provides, in part, that a support order may be modified for the substantially increased earnings of the obligor that make the terms of a current order unreasonable and unfair.  See Minn. Stat. § 518.64, subd. 2(b)(1).[2]

It is presumed that there has been a substantial change in circumstances under paragraph (a) and the terms of a current support order shall be rebuttably presumed to be unreasonable and unfair if:

                        (1)       the application of the child support guidelines in section 518.551, subdivision 5, to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $50 per month higher or lower than the current support order;


Minn. Stat. § 518.64, subd. 2(b).    

            Christian’s affidavit supporting her motion for an increase in child support alleged that increases in Bainbridge’s earnings since support was set in the judgment of dissolution in 1998 meet the presumption set forth in Minn. Stat. § 518.64, subd. 2(b)(1).

The district court, however, only considered whether there had been a substantial increase in Bainbridge’s earnings since Christian’s prior motion for an increase in child support had been denied. 

            Bainbridge argues that although Christian’s motion for modification of his child-support obligation was denied in the prior order, because the order required Christian to bear a portion of visitation transportation costs, a term of the support order was, in fact, modified, thereby establishing the reference date for any future claimed income increases.  See Blomgren v. Blomgren, 386 N.W.2d 378, 380 (Minn. App. 1986) (stating that looking only to changes since most recent order is appropriate if modification was made and that base of measuring change is that order.)  We reject Bainbridge’s reliance on Blomgren for the proposition that addition of a term requiring the non-custodial parent to share visitation transportation costs constitutes a modification of a child-support obligation for purposes of establishing the base from which to measure future change in the non-custodial parent’s income.  Christian’s motion for modification of child support was denied in 2001.

                        When modification is sought following a denied motion for modification * * * the first question is whether the change since the denied motion has been significant enough that it might, because of its incremental effect, require the trial court to examine the cumulative changes since the order setting the support level.  If the changes are weighty enough to meet the test of potential significance, the trial court must consider the cumulative changes * * * to see if altogether the incremental changes are substantial.  If not, there is no need to look back to the prior * * * order, for the order of denial should be given conclusive effect.

                        Reexamination of support levels should be allowed more readily when the immediately previous motion was denied, for there is then the possibility of cumulative or incremental changes and a relatively small recent change may tip the balance to “substantial.”


Phillips v. Phillips, 472 N.W.2d 677, 680 (Minn. App. 1991) (citation omitted).

            Here, the district court considered changes in Christian’s income since the 1998 judgment,[3] but only considered the increases in Bainbridge’s income since the 2001 order denying Christian’s motion for an increase in child support and failed to consider whether the increase was substantial enough that cumulative increases since 1998 would meet the statutory presumption.  On remand, the district court shall follow the procedure outlined in Phillips.  And if the cumulative increases since 1998 meet the statutory presumption for modification, the district court must then determine whether Bainbridge has rebutted the presumption.

            Christian also argues on appeal that the district court should be directed to determine Bainbridge’s net income using his actual current taxes, rather than tax tables.  But Christian did not raise this issue in her notice of review to the district court.  By statute, the notice of review “shall specify the grounds for such review and the specific provisions of the [referee’s] recommended findings or orders disputed.”  Minn. Stat. § 484.65, subd. 9 (2002).  The only issue raised in the notice of review is the issue of the date from which the referee measured changes in Bainbridge’s income and the finding that his income had not substantially increased.  This court will generally not consider matters not argued and considered in the district court.  Thiele v. Stitch, 425 N.W.2d 580, 586 (Minn. 1988), and we therefore decline to reach this issue.  We note that we have held that the district court must determine current net income for the purpose of setting child support.  Thomas v. Thomas, 407 N.W.2d 124, 127 (Minn. App. 1987).

Net income is properly calculated based upon money available to the taxpayer.  Minn. Stat. § 518.551, subd. 5(a)   * * * , recommends using a tax table to find standard deductions.  However, it is also proper to compute net income by deducting amounts withheld and adding amounts refunded during a particular year.  In the case of a parent who receives a joint refund with a new spouse, the court must include in the parent’s net income only that portion of the refund attributable to that parent.

Lenz v. Wergin, 408 N.W.2d 873, 876 (Minn. App. 1987) (citations omitted).  On remand, the district court is to determine Bainbridge’s current net income according to principles established in the statute and case law, and may, in its discretion, reopen the record to require the parties to submit any additional information necessary to this calculation.    

            Reversed and remanded.


[1] The district court found that the housing allowance at the time of the stipulation was $750, despite the parties’ assertion that it was $850, but this finding was never challenged.

[2] Christian’s motion is based solely on an allegation of Bainbridge’s increased earnings since the original support obligation was established.

[3] The district court seems to have based denial in part on the fact that Christian’s income has increased substantially since the judgment, but evaluation of the fairness of the current support order requires consideration of both parents’ financial resources and the children are entitled to enjoy the benefits of the increased income of both parents.  Blomgren, 386 N.W.2d at 381.