This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






In re Leann Cvar, petitioner,





William Herbert Cvar,



Filed March 29, 2005

Affirmed in part, reversed in part, and remanded

Kalitowski, Judge


St. Louis County District Court

File No. F5-93-300688


Leann Cvar, 1913 13th Avenue South, Minneapolis, MN 55404 (pro se respondent)


William Herbert Cvar, P.O. Box 41, Hibbing, MN 55746 (pro se appellant)


            Considered and decided by Klaphake, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            In this child-support dispute, pro se appellant-father argues that the child support magistrate (CSM) (a) ignored evidence of his current earnings; (b) erroneously found that father was underemployed and imputed an excessive income to father; (c) made findings not supported by the record; (d) erred in adding back legitimate depreciation deductions for the purposes of determining child support; (e) failed to adequately consider the child-support factors set forth in Minn. Stat. § 518.551, subd. 5 (2004); and (f) misapportioned the cost of visitation.  Because the CSM failed to state its reasons for ignoring evidence of appellant’s current wages and did not provide sufficient findings for review, we reverse and remand for further findings regarding appellant’s income.  Because the CSM’s decisions adding back a number of appellant’s claimed deductions are supported by the record, we affirm this issue.  Finally, because appellant’s remaining claims were not properly raised below, we decline to address them here.  



            On appeal from a child support magistrate’s ruling, the standard of review is the same as it would be if the decision had been made by a district court.  Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000).  And a district court has broad discretion to provide for the support of the parties’ children.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002). 

            Appellant, who is self-employed, argues that the CSM erred in using his 2002 personal and corporate tax returns to determine his income, instead of more recent evidence presented at the support hearing indicating that appellant’s income had substantially decreased in the first 11 months of 2003.

            This court has allowed district courts broad discretion in dealing with self-employed individuals because “the opportunity for a self-employed person to support himself yet report a negligible net income is too well known to require exposition.”  Ferguson v. Ferguson, 357 N.W.2d 104, 108 (Minn. App. 1984).  And district courts “may properly consider earning capacity and earnings history to determine a party’s ability to comply with a child support order.”  LeTendre v. LeTendre, 388 N.W.2d 412, 416 (Minn. App. 1986).  But “earning capacity is not an appropriate measure of income unless (1) it is impracticable to determine an obligor’s actual income or (2) the obligor’s actual income is unjustifiably self-limited.”  Beede v. Law, 400 N.W.2d 831, 835 (Minn. App. 1987).  Further, in setting child support, the district court must make written findings that establish the obligor’s income and any other significant evidence used as a basis for making the presumptive guideline calculations.  Minn. Stat. § 518.551, subd. 5(i) (2004).[1]   

            Here, the CSM’s January 27, 2004 order does not include a finding that the CSM had difficulty determining appellant’s net income, nor does the order acknowledge any evidence of appellant’s earnings outside of his 2002 personal and corporate tax return.  Reading the CSM’s order without the benefit of the accompanying transcripts and appellant’s brief, it would appear that appellant’s income was not in dispute.  The CSM ordered appellant to pay “ongoing child support” in the amount of $504 per month until his last child covered turns 18, or 20 if she attends secondary school.  And the CSM directed appellant to split unreimbursed medical/dental expenses evenly with respondent.  The CSM based its award on findings that appellant “is employed and is the sole owner of NCI Construction,” and his gross income is $2,101 per month, calculated as follows:

Corporate Net Income per 2002 Tax Return ($441)


Add back the following expenses not allowed for child support purposes:


·  $6275 interest accrued but not yet paid regarding loan to

   Obligor’s father.

·  $5636 special depreciation.

·  $938 one half of double declining balance depreciation.

·  $1568 for 10% of vehicle expense as personal use of



Corporate net income for child support purposes $13,976.


Add the Obligor’s salary of $11,240, Obligor’s total annual gross income is $25,216.


The CSM then deducted $420 per month for social security and taxes, leaving appellant with net monthly income of $1,681.  As noted above, and in accordance with Minnesota’s child support guidelines for an obligor with two children, the CSM ordered support in the amount of $504 per month.  See Minn. Stat. § 518.551, subd. 5(b) (2004)[2] (stating that a child-support obligor with two children and net income between $1,001 and $5,000 should pay 30% of his or her income as support).

            But at the November 14, 2003 hearing, the CSM heard testimony that appellant had gross income of $601.42 a month in 2003, and that he had earned only $5,978.68 from January 1 through October 2003.  Appellant also submitted his pay stubs for the first 11 months of 2003.  Respondent was not present at the hearing and did not submit any evidence.  St. Louis County originally moved to establish child support on behalf of respondent because she received public medical assistance from March 1, 2003 through August 31, 2003.  But St. Louis County waived its claim for arrears and did not participate in the November 14, 2003 hearing.

            The CSM’s January 27, 2004 order does not indicate that the CSM had any difficulty in determining appellant’s income, nor does it include an express determination that appellant was underemployed.  And the CSM’s order does not discuss the more-current evidence of appellant’s income that he presented at the hearing.  See Minn. Stat. § 518.551, subd. 5(i) (stating that “[i]f the court does not deviate from the guidelines, the court shall make written findings concerning the amount of obligor’s income . . . and any other significant evidentiary factors affecting the determination of child support”) (emphasis added).  And it is well settled that an obligor’s current net income must be determined for purposes of setting child support.  See Thomas v. Thomas, 407 N.W.2d 124, 127 (Minn. App. 1987) (holding that a six-month old tax return does not represent current income for the purpose of calculating obligor’s child support obligation).  Accordingly, we conclude that the CSM did not provide the necessary findings required by Minn. Stat. § 518.551, subd. 5(i).  We therefore reverse and remand for further findings on the issue of appellant’s income in such proceedings as the CSM deems appropriate.


            Appellant also argues that the CSM erred in adding back legitimate business deductions and interest expenses claimed on his 2002 corporate tax return.  Generally, the decision to allow business expenses or deductions is within the child-support magistrate’s discretion.  See Keil v. Keil, 390 N.W.2d 36, 39 (Minn. App. 1986) (applying abuse of discretion standard to the district court’s decision not to allow claimed business expenses).  And the burden of establishing the necessity for the claimed deductions lies with the business owner.  Minn. Stat. § 518.551, subd. 5b(f) (2004)[3]; Preussner v. Timmer, 414 N.W.2d 577, 579-80 (Minn. App. 1987)

            Here, the CSM added back a number of appellant’s claimed depreciation deductions from his 2002 corporate tax return.  And appellant relies on this court’s decision in Preussner to support his claim that he should have been allowed to argue the necessity of his deductions.  See Preussner, 414 N.W.2d at 579(stating that “when the record contains credible evidence of legitimate depreciation deductions, the [district] court should consider those deductions in determining an obligor’s net income”).  But the record indicates that the depreciation deductions added back by the CSM were properly added back because they were accelerated depreciation expenses.  See Minn. Stat. § 518.551, subd. 5b(f) (stating that “[o]rdinary and necessary expenses do not include amounts allowed by the Internal Revenue Service for accelerated depreciation expenses . . .  or any other business expenses determined by the court to be inappropriate for determining income for purposes of child support”). 

            The CSM also added back $1,568, which was 10% of appellant’s vehicle expense deduction.  Based on appellant’s testimony at the November 14 hearing regarding his use of company vehicles, we conclude that the CSM did not abuse its discretion.  The CSM also added back $6,275 that appellant had deducted as an interest expense for a loan from his father.  But the record indicates that only $200 of appellant’s claimed $6,475 deduction was actually paid on the loan.  Accordingly, the CSM did not abuse its discretion in adding back $6,275 of appellant’s reported interest deduction for purposes of determining child support.  


            Finally, appellant raises a number of arguments that the CSM refused to consider for the first time in his motion for review.  And appellant raises additional arguments for the first time on appeal.  This court will generally not consider matters that were not argued and considered in the court below and, accordingly, we decline to address appellant’s remaining arguments.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

            Reversed in part, affirmed in part, and remanded.  

[1] Appellate courts generally apply the law as it exists at the time they rule on a case, unless a change in the law affects rights that were vested before the change.  See Interstate Power Co., Inc. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 575 (Minn. 2000).  Because there is no such change here, this opinion cites the current version of this statute.

[2] See supra note 1.

[3] See supra note 1.