This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1544

 

 

Pamela Jean Sebastian n/k/a Pamela Jean Stone,

petitioner,

Appellant,

 

vs.

 

Paul Francis Sebastian,

Respondent.

 

 

Filed July 20, 2004

Affirmed in part, reversed in part, and remanded

Anderson, Judge

 

Hennepin County District Court

File No. DC 141809

 

James L. Berg, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN† 55318 (for appellant)

 

Steven Hennek, 2585 Hamline Avenue North, Suite A, Roseville, MN† 55113 (for respondent)

 

††††††††††† Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Anderson, Judge.

U N P U B L I S H E D† O P I N I O N

 

G. BARRY ANDERSON, Judge

 

††††††††††† In this child support dispute, appellant sought an increase in respondentís child support obligation, and respondent requested that his obligation be decreased.† A large part of respondentís income is derived from monthly commissions.† Appellant challenges the district courtís finding of the amount of respondentís gross monthly commissions, perks, and benefits; appellant also alleges that she was entitled to certain items in discovery.†† We affirm in part, reverse in part, and remand.

FACTS

 

††††††††††† The marriage between these parties produced two children.† Both are now adults, but one child was a minor when this case was litigated in the district court.† Following dissolution of the marriage, appellant had custody of the minor child.† Since the dissolution, there have been numerous modifications to respondentís child support obligation and many motions brought by appellant.†

††††††††††† In a July 10, 2001, order, the child support magistrate stated, ď[Respondent] shall provide [appellant] with copies of his state and federal tax returns with all attachments within a week of filing his return,Ē and also provided for a fine if respondent failed to comply.† The magistrate concluded, however, that respondentís W-2s ďsubstantially reflect his income.Ē† On December 5, 2002, appellant filed a motion to, inter alia, hold respondent in contempt of court and to find that respondent had misrepresented his income.† In January 2003, appellant served respondent with interrogatories that demanded, in part, detailed information regarding respondentís then-current employment and information about any additional income, indebtedness, expenses, and insurance.† Respondent filed an affidavit in March 2003, which stated that respondent had started a new job on October 14, 2002.

††††††††††† Respondent works as a sales manager for a car dealership.† His base salary is $5,000 per month plus a monthly bonus.† In addition, respondent has a company vehicle, disability insurance, and life insurance provided by his employer.† Respondentís monthly commissions were: March 2003, $3,332.32; February 2003, $2,823.96; January 2003, $2,395.49; December 2002, $3,600.87; November 2002, $2,624.96; and October 2002, $1,739.47 (this considerably smaller number appears to have been because he only worked 58% of the month).† Respondent calculated his projected average monthly commission as $2,020 using September 2002 numbers.[1]† Respondent further claimed that his average net monthly income for his first five months of work was $4,241.29, but that he was entitled, and planned, to deduct money for his pension beginning in his sixth month.† Thus, respondent projected his net monthly income as $4,000.†

The company car policy states, ďEach salesperson will be charged $300 per month for [his/her] [company car].† A salesperson who elects not to drive a [company car] will be paid $300 per month in addition to the standard pay plan.Ē† In order to comply with tax law, the policy requires ďsubstantial restriction of personal use by salesman, including the following points:† [the company car] can not be used for vacation trips, salesman can not store personal possessions in [the company car], . . . mileage is limited, salesman must keep mileage logs to substantiate personal and business use.Ē† Appellant alleged that respondent receives other perks and benefits worth at least $566 per month.

††††††††††† In the first of four decisions, the referee found that the partiesí minor child had a February 1985 birth date and was 18 years old.† The order also found that respondentís average gross monthly income was $7,020, with an average net income of $4,063.† The referee ordered respondent to answer appellantís interrogatories.† The referee ordered that respondentís child support obligation be reduced to $1,016 because respondentís income had declined to $7,020.† The referee fined respondent for failing to produce his 2001 tax return in a timely manner.† Lastly, the referee ruled that, because the partiesí child was 18 years of age, respondent was no longer obligated to provide appellant with financial information.†

††††††††††† In the second decision, rendered less than three weeks after the first, the referee amended the minor childís birth date in the decision to December 1985.† In August 2003, the district court remanded this matter to the referee to determine the childís actual birth date and to determine if any other part of the order was affected by the childís birth date.†

††††††††††† The referee determined that the minor child was actually 17 years old but characterized this as a ďminor error.Ē† The referee then denied appellantís request for respondentís 2002 and 2003 tax returns because his child support had been set at $1,016 per month, which was to continue until the child was emancipated or there were grounds to modify the support.† The referee also declined to order the disclosure of respondentís tax returns because the disclosure requirement ďhas resulted in excessive litigation and acrimony between the parties.Ē† The district court affirmed the refereeís order.† This appeal followed.

D E C I S I O N

 

1.† Modification of child support

 

††††††††††† Appellant argues that the district court clearly erred in computing respondentís income and that the district court erred in not considering the needs of the partiesí child.

a.† Respondentís income

Appellant claims the income calculation for respondent is incorrect because: (1) the commissions earned by respondent yield a higher gross income than the amount used by the district court, (2) the district court improperly ignored respondentís perks and benefits, and (3) the district court did not order respondent to ďfully complyĒ with appellantís discovery request.†††

i.† commissions

Appellant seeks review of an order denying a request to modify child support.† A previous order setting child support may be modified if one party has ďsubstantially increased or decreased earnings[.]Ē† Minn. Stat. ß 518.64, subd. 2(a)(1) (2002).

Findings of fact are affirmed unless clearly erroneous, and a refereeís findings are treated as the district courtís findings.† Minn. R. Civ. P. 52.01.† Here, the district court found that respondent had a gross monthly income of $7,020 and a net monthly income of $4,063.† Appellant challenged respondentís gross monthly income.

But respondentís child support obligation is determined by examining his net income not his gross income.† Minn. Stat. ß 518.551, subd. 5(b) (2002).† The record supports respondentís claim that his net income will decline when he becomes eligible for, and begins to participate in, a retirement program.† Because there is evidence in the record supporting the district courtís findings concerning respondentís income, the district courtís finding regarding net income was not clearly erroneous.

ii.† perks and benefits

Appellant argues that the district court erred by not including as income respondentís automobile allowance and related benefits.† The district court did not analyze respondentís automobile allowance or related benefits and did not include these amounts as part of respondentís income.† The company car and other kinds of in-kind payments are includable as income for purposes of calculating child support.† Minn. Stat. ß 518.551 subd. 5(b)(1) (2002); County Of Nicollet v. Haakensen, 497 N.W.2d 611, 614 (Minn. App. 1993).† At a minimum, this benefit has a value of $300 per month, and we cannot say this is insubstantial in determining respondentís net income.† We thus remand to the district court the issue of respondentís automobile allowance and related benefits to determine how respondentís in-kind benefits affect the calculation of income for child support purposes.

iii.† discovery compliance

††††††††††† Appellant argues that the district court erred because it did not order respondent to continue providing to appellant his financial information on a monthly basis.† This issue was not raised in the district court and was therefore waived.† Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).†

b.† The childís needs

Appellant also argues that the district court abused its discretion because the needs of the child were not considered before modifying the award.† Appellant made no argument on this issue at the district court and introduced no evidence concerning the needs of the child.† Therefore, appellant waived the issue.† Id.

2.† Financial Information

††††††††††† Appellant argues that, because the partiesí child was 17 when the district court relieved respondent of the yearly tax information-reporting obligation, the district court erred.† We disagree.

††††††††††† District courts are authorized to modify previous child support orders.† Minn. Stat ß 518.64, subd. 1 (2002).† The district court ruled that the provision in the 2001 child support order that required respondent to provide tax information to appellant each year was causing excessive litigation and feuding.† There is ample evidence in the record that this conclusion was correct.† This led the district court to eliminate the requirement.† The age of the child is irrelevant to this analysis.† Appellant does not challenge either the procedure used to modify the order or the merits of the district courtís reasoning.† Appellantís argument is without merit.

††††††††††† Accordingly, we remand this matter to the district court for the sole purpose of determining respondentís income from the automobile allowance and benefits related to that allowance for purposes of calculating his child support obligation.

††††††††††† Affirmed in part, reversed in part, and remanded.



[1] Respondent did not work at his present employment in September 2002, and it is unclear why those numbers were used.