This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-950

 

 

In re the Matter of:

Jessica Jacobson, petitioner,

Respondent,

 

vs.

 

Donald Duane McPhail,

Appellant.

 

 

Filed December 30, 2003

Affirmed; motions to strike granted/denied and motion for attorney fees granted

Robert H. Schumacher, Judge

 

Anoka County District Court

File No. F0-97-52555

 

 

Elizabeth A. Schading, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Minneapolis, MN 55433 (for respondent)

 

Thomas B. James, 440 North Broadway Avenue, Cokato, MN 55321 (for appellant)

 

 

            Considered and decided by Schumacher, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.

 

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

            Appellant-father Donald Duane McPhail appeals the judgment denying his motions to modify child support and change his children's surnames.  We affirm.  We also grant respondent-mother Jessica Jacobson's motion to strike and grant her motion for attorney fees.

FACTS

            While the parties were never married, father was adjudicated the father of the parties' three children.  In December 1999, father agreed to increase his monthly child support obligation from $776 per month to $1,500.

Father later moved to reduce his child support obligation and to change the children's surnames from mother's surname to his own.  Mother successfully opposed both of father's requests for relief.  This appeal results.

D E C I S I O N

1.            The district court has broad discretion in determining whether to modify child support.  Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999).  "Such discretionary power is to be exercised with great caution and only upon clear proof of facts showing that the circumstances of the parties are markedly different from those in which they were when the decree was rendered."  Rubenstein v. Rubenstein, 295 Minn. 29, 32, 202 N.W.2d 662, 664 (Minn. 1972); see Minn. Stat. § 518.64, subd. 2 (2002) (stating child support obligation may be modified upon showing of substantially changed circumstances rendering existing obligation unreasonable and unfair).

It is the movant's burden to establish a substantial change of circumstances making the existing terms of the decree unreasonable and unfair under Minn. Stat. § 518.64, subd. 2(a).  Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993), review denied (Minn. June 22, 1993).  When setting or modifying child support, the court must consider a number of factors, taking into account "all earnings, income, and resources of the parents, including real and personal property."  Minn. Stat. § 518.551, subd. 5(c)(1) (2002).  Failure to do so is reversible error.  Kuronen, 499 N.W.2d at 53 (finding district court abused its discretion by refusing to consider father's 401K plan when determining whether father's child support obligation should be modified), review denied (Minn. June 22, 1993).

Father argues the record contains the necessary information addressing changed financial circumstances and therefore the finding that he failed to meet his burden of proof on this issue was in error.  We disagree.  Although father provided some financial information, he refused to answer questions or provide documentation regarding ownership of real property, personal property valued in excess of $500, bonds, securities, pensions, or retirement funds.  Furthermore, although he disclosed receipt of $140,000 upon the sale of his tavern, and purported to explain that this money is no longer available to him, by not providing complete disclosure of his assets it remains unclear as to how he disposed of this money.  Thus, father failed to meet the burden imposed by section 581.551, which requires the district court to consider the complete financial picture including all financial resources, property, and income.  See Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003) (stating, while record support for amount of income attributed to party in child-support modification context was "not conclusive, a major reason for the limited support was [the party's] failure to provide any credible evidence regarding her financial status" and that "[o]n appeal, a party cannot complain about a district court's failure to rule in her favor when one of the reasons it did not do so [was] because that party failed to provide the district court with the evidence that would allow the district court to fully address the question"), review denied (Minn. Nov. 25, 2003).  Given father's status as self-employed, and considering the recent sale of his tavern, disclosure of the omitted information is necessary to provide clear proof of changed financial circumstances.  See, e.g., Ferguson v. Ferguson, 357 N.W.2d 104, 108 (Minn. App. 1984) (noting "opportunity for a self-employed person to support himself yet report a negligible net income is too well known to require exposition").  The district court did not abuse its discretion in denying his motion to modify child support.

2.            To the extent father argues the district court erred in denying his motion for failure to respond to discovery requests where mother did not make a motion compelling discovery under Minn. R. Civ. P. 37, he misreads the district court's findings.  The district court did not deny his motion because of his failure to answer discovery.  The district court denied the motion because father failed to meet his burden of proof, which could have presumably been met by completely responding, to discovery requests or otherwise more fully documenting his financial circumstances.  Moreover, father cites no authority requiring a motion to compel discovery in this context and case law does not require one.  See, e.g., Doering v. Doering, 629 N.W.2d 124, 131 (Minn. App. 2001) (noting parties to dissolution have affirmative obligation to disclose relevant information absent request for information), review denied (Minn. Sept. 11, 2001).

3.            We review the district court’s decision to grant or deny a name change under an abuse-of-discretion standard.  In re Welfare of C.M.G., 516 N.W.2d 555, 561 (Minn. App. 1994).  "Judicial discretion in ordering a change of a minor's surname against the objection of one parent should be exercised with great caution and only where the evidence is clear and compelling that the substantial welfare of the child necessitates such change."  LaChapelle v. Mitten, 607 N.W.2d 151, 166 (Minn. App. 2000) (quotation and citation omitted), review denied (Minn. May 16, 2000).  The district court’s findings will be sustained unless they are clearly erroneous.  Minn. R. Civ. P. 52.01.  In determining the child's best interests, the court may consider, but is not limited to: (1) how long the child has had the current name; (2) any potential harassment or embarrassment the change might cause; (3) the child's preference; (4) the effect of the change on the child's relationship with each parent; and (5) the degree of community respect associated with the present and proposed names.  In re Saxton, 309 N.W.2d 298, 301 (Minn. 1981).

Father submitted an affidavit asserting that it is in the best interest of his children to change their surnames because he is their father, he loves them, he has maintained a relationship with them, and he has supported them financially.  Father's affidavit also explained that mother is married and could change her surname.  He argued that since his surname would not change, even if he were to marry, it would be better for the children to share his name.  Mother objected to changing the children's surnames.  By affidavit, she explained that she had not and will not change her surname, two of the children are in primary school and are known by their surnames, and as the custodial parent it is helpful to have a common surname with her children.  Additionally, she argued that father has not established a relationship with the youngest child.

Father argues the district court's findings are not supported by evidence and that the court failed to make findings based on the best-interest factors specified in Saxton.  But Saxton does not mandate a specific set of factors for every case.  See LaChapelle, 607 N.W.2d at 166 (stating court may consider, but is not limited to, factors described in Saxton).   Here, the district court, in light of mother's objection, was required to change the children's surname only upon a showing of clear and compelling evidence that the substantial welfare of the children necessitated the change in surname.  Id.  On this record, father's factual assertions do not constitute clear and compelling evidence that the children's surnames should be changed.  The district court did not abuse its discretion in denying his motion to change the children's surnames.

4.            Mother brought a motion to strike footnote 2 of father's brief arguing that it references information not included in the record.  We have reviewed the record and the factual information referenced in this footnote was not before the district court. Therefore, the information in the footnote may not be considered on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582-583 (Minn. 1988) (stating appellate court may not consider matters not produced and received into evidence below); see Minn. R. Civ. App. P. 110.01 (defining record on appeal); Kelly v. City of Minneapolis, 581 N.W.2d 372, 379 (Minn. App. 1998) (striking documents beyond record on appeal and references to them in party's argument), rev'd on other grounds (Minn. Aug. 5, 1999).  We grant mother's motion to strike.

5.            Father argues the entirety of portions of the brief mother submitted to this court titled "Statement of the Case" and "Statement of Facts" should be stricken for violating procedural rules.  Because we have not relied on these portions of mother's brief in reaching our decision, we decline to address the merits of his assertions.  See Berge v. Comm'r of Pub. Safety, 588 N.W.2d 177, 180 (Minn. App. 1999) (finding it unnecessary to address merits of motion to strike when appellate court did not rely on objected-to portions).

6.            Mother moved for attorney fees incurred in defending this appeal.  She argues that father's continued litigation on the issue of child support, without complete disclosure of his financial situation, justifies an award of conduct-based fees under Minn. Stat. § 518.14, subd. 1 (2002).  We agree.  Father has unreasonably contributed to the length and expense of these proceedings by appealing despite his failure to disclose his assets, or how he disposed of them.  We have reviewed the documentation supporting mother's motion and conclude the claimed fees are reasonable.  We award attorney fees of $3,219.50.

Affirmed; motions to strike granted/denied and motion for attorney fees granted.