This opinion will be unpublished and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

A03-1045

 

In re the Marriage of:

Cynthia Kay Degener, petitioner,

Respondent,

 

vs.

 

Ren Allen Degener,

Appellant.

 

Filed ­­­March 9, 2004

Affirmed

Harten, Judge

Dissenting, Randall, Judge

 

Goodhue County District Court

File No. FX-01-186

 

Leah M. Diorio, 325 Main Street, Suite 200, Red Wing, MN 55066 (for appellant)

 

Cynthia Kay Degener, 220 Motel Avenue, Red Wing, MN 55066 (pro se respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Harten, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Appellant, a child support obligor, argues that the evidence does not support the findings of his net monthly income.  Because sufficient evidence does support that finding, we affirm.

 

FACTS

 

            Appellant Ren Degener and respondent Cynthia Degener are the parents of E.C.D., now age four.  When the parties’ marriage was dissolved in 2001, respondent received legal and physical custody of E.C.D., and appellant became a child support obligor.  In October 2002, appellant moved to modify child support, which was then set at $211 monthly.

Appellant’s income has fluctuated significantly because he was incarcerated for part of 2002 and has also been in treatment.  A self-employed painter, he earned $2,800 in January 2003 and $960 in March 2003.  In February 2003, appellant signed a contract with Centex Homes to paint 60 units in the following year.  Centex paid him $13,166.14 for painting eight units in March and April.  In June 2003, respondent moved to modify child support.  The Child Support Magistrate (CSM) found a substantial change in circumstances based on appellant’s net monthly income of $2,496.66 and set child support at $613 monthly.

The CSM arrived at appellant’s net monthly income by taking his income for March and April, $14,126.14, deducting his claimed expenses of $5,689 to arrive at $8,437.14 for two months.  This reflected a monthly income of $4,218.57 and an annual income of $50,622.84.

The CSM acknowledged that appellant would have expenses other than his claimed expenses.  But those expenses were unknown.  The CSM found that appellant “submitted various expenses in the form of receipts and by verbal and written testimony.
. . .  It is questionable whether all receipts represent business expenses [and] [i]t is unknown whether expenses will be recurring monthly, yearly, or not at all.”

Because appellant’s other expenses were unknown, the CSM also relied on a report of the Minnesota WorkForce Center indicating that painters in the area where appellant worked earn an annual income of about $41,492.  The CSM found this figure “consistent with [appellant’s] earnings of $50,622.84 as calculated above, prior to deductions for legitimate business expenses.”  The CSM calculated that an annual gross income of $41,492 resulted in a monthly net income of $2,496.66.[1]  Based on this income, the CSM set appellant’s child support obligation at the guideline $613 per month.  Appellant challenges the amount of support.

D E C I S I O N

            When an appeal is brought directly from the decision of a child support magistrate without seeking review in district court, this court’s scope of review is limited to whether the evidence supports the findings and whether the findings support the conclusions and the judgment.  Davis v. Davis, 631 N.W.2d 822, 825 (Minn. App. 2001).  Appellant contends that evidence does not support the finding of his income for three reasons.

            First, appellant claims that the CSM failed to consider the six statutory factors in Minn. Stat. § 518.551, subd. 5(c) (2002).  But appellant does not specify what information was not considered.  Moreover, the CSM did consider factor 1, the earnings, income, and resources of the parents, and neither party provided any information as to the other factors or indicated that there was any relevant information.  Appellant offers no support for his implication that a CSM is required to make written findings on all factors regardless of their relevance.

            Second, appellant objects to the CSM’s reliance on his earnings for only two months.  But the CSM actually relied on appellant’s testimony.  When the CSM asked if appellant had ever been continuously employed for a year as a painter, appellant replied that he had not because of interruptions by treatment and incarceration.  The CSM noted that, because appellant’s employment had been intermittent, tax records would not be an accurate guide to his present and future income.  The CSM asked appellant about his current employment.  Appellant testified,  “I’m doing work with Centex Homes.  . . .  I was issued a 60-unit contract, . . . 60 town homes to do.  I’m in my 8th unit.  I just finished my 8th unit yesterday.”  The CSM asked, “Is there a written contract with Centex Homes?”  Appellant answered, “[T]he contract is written as a . . . one year contract . . . they want to see how I do with them for one year before they’ll re[assign] me for an additional year. . . .  [I]t’s kind of a big break for me.”  Based on Centex’s payment of $13,166 for eight units, the contract for 60 units is worth approximately $98,700.[2]  The CSM relied not on appellant’s earnings for two months but on his contract for a year’s work with Centex.

            Third, appellant objects to the CSM’s reliance on the document from the Minnesota WorkForce Center, claiming it is hearsay.  But “[t]he child support magistrate may admit any evidence that possesses probative value, including hearsay, if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs.”  Minn. R. Gen. Pract. 364.10, subd. 1.  The CSM told both parties at the hearing that calculating appellant’s monthly income would be problematic because of the absence of records and employment history.

            The CSM asked appellant to submit documentation of his business expenses so they could be appropriately deducted.  Appellant submitted one handwritten page on which he claimed $11,199 for paint, labor, other expenses, and mileage but he did not indicate whether these expenses were weekly, monthly, or annual.  The CSM did not have the information necessary to deduct all of appellant’s claimed business expenses.  Moreover, as the CSM noted, some of the receipts appellant submitted were for supplies purchased during periods when he was not employed or were for items such as a watchband, repairs to his van, and lunch in a restaurant.  The CSM’s finding that “[i]t is questionable whether all receipts represent business expenses” is supported by the record.[3]

            Finally, appellant contends that, even if the evidence does support the findings, the findings do not support the conclusion that there has been a substantial change in circumstances.  But the CSM found that, at the time of the prior order, appellant had an average net monthly income of $916 and expenses between $750 and $950 and that he now has an average net monthly income of $2,496.66 and his net monthly expenses are unknown.  These findings support the conclusion that there has been a substantial change in circumstances.

            Affirmed.

 

RANDALL, Judge (dissenting).

            I respectfully dissent.  I would reverse and remand to the district court to seek additional information on income and expenses from both parties.

            No matter how you cut it, all the CSM did is take the two best months appellant ever had in his life and projected yearly income and child support obligations based on just that.  Perhaps appellant may have been remiss in what he brought to the court, but on remand, he can be directed to do a better job or again face the possibility of unrealistically high child support.

            I have no idea what legal authority is represented by the Minnesota WorkForce Center’s statement, “painters in the area where appellant worked earn an annual income of about $41,492.”  Who is Minnesota WorkForce Center?  What is the validity of their data?  If you are not working, or working and not earning that amount, why is it relevant?  A reversal and a remand would, for instance, solidify whether appellant was still on the 60-unit contract and how he was doing.  If that is still going smoothly, the amount in question (300% more than his January 2003 support obligation) might be justified.  That year’s contract (2003) is coming to a close and there is nothing in the record to indicate that appellant has any job prospects after February 2004.

            Put another way, there is just not enough information on two months out of appellant’s life to perform an accurate and honest analysis of his ability to pay.

            I dissent, and would reverse and remand to the district court to take a second look.

 



[1] $41,492 annually generates a gross monthly income of $3,457.66; deduction for federal and state taxes and social security is $961.

[2] The hearing was in May.  Appellant also testified that his work for Centex would not resume until August and that he hoped to earn additional income by painting exteriors during June and July. 

[3] Appellant responded to the CSM’s request for his business expenses with a pile of unorganized, unannotated receipts for various items.  In his brief, appellant states that, “for purposes of appeal,” he has provided a chart of expenses.  But that chart was not before the CSM and cannot be considered now.  See Minn. R. Civ. App. P. 110.01 (papers filed in the trial court, the exhibits, and the transcript constitute the record on appeal).  Respondent’s pro se request that the new material be stricken is granted.