This opinion will be unpublished and

may not be cited except as provided by

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






Ramsey County,

Tammy K. Williams,


Kevin Korbel,


Filed June 7, 2005

Reversed and remanded

Poritsky, Judge*


Ramsey County District Court

File No. F103050095


Lynn A. Wolters, Wolters Law Office, 1001 Hyacinth Avenue East, St. Paul, MN  55106 (for appellant)


Susan Gaertner, Ramsey County Attorney, Kathleen A. Gora, Assistant County Attorney, Ramsey County Government Center, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102-1657 (for respondent Ramsey County)


Tammy K. Williams, 926 Galtier Street, St. Paul, MN  55117 (pro se respondent)


            Considered and decided by Randall, Presiding Judge; Minge, Judge; and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal in this child-support dispute, appellant-father argues that because the record does not support the Child Support Magistrate’s (CSM) findings as to appellant’s ability to work, his net income, or his ownership of a business, the CSM’s child support determination is against all logic and facts in the record.  We reverse and remand for recomputation of appellant-father’s child support obligation.


Respondent Tammy Williams gave birth to K.H.K. on April 26, 2001.  On February 21, 2003, Williams and respondent Ramsey County (the County) initiated an action under the Minnesota Parentage Act, Minn. Stat. §§ 257.51-.74 (2004), to establish paternity and to order support for K.H.K.  In its petition, the County requested that the CSM adjudicate appellant Kevin Korbel to be the father and order Korbel to pay child support, medical and dental support, and childcare costs.  At the time the action was initiated, Korbel was married and separated from his wife under a decree of separation dated August 16, 2002.  The present matter proceeded to a hearing on December 22, 2003, but because Williams failed to appear and no resolution could be reached as to custody, the CSM referred the matter to district court.  

At the hearing before the district court on February 6, 2004, the referee adjudicated Korbel to be the father of K.H.K.  The parties agreed that Williams would receive sole physical custody.  The district court ordered Korbel to pay temporary monthly child support of $375 and referred the case for an additional hearing to determine Korbel’s net monthly income and set permanent child support. 

In preparation for the upcoming hearing, by letter dated March 19, 2004, Ramsey County directed Korbel to produce pay stubs, 2002 and 2003 federal and state income tax returns, and a Financial Statement.  Korbel failed to specifically comply with the County’s disclosure requests, but he did provide the County with a 2001 income tax return and 1099s from 2002 and 2003.   

At the April 8, 2004, hearing, the County requested that the district court make adverse inferences against Korbel for failing to produce the requested documentation.  The County suggested that the CSM calculate child support based on the August 2002 legal separation order.

At the hearing, Korbel gave only limited testimony as to his 2002 and 2003 income.  Instead, Korbel focused on his inability to work due to an aggravated back injury.  Korbel testified that he installed windows for the All American Window Company.  Korbel provided the CSM with two doctor’s notes stating that he was unable to work from mid-December 2003 until mid-January 2004 “due to medical problems” and, as of the end of January, was “currently unable to work and is unemployable due to medical problems.”  A letter from his family practice physician gave additional details about his inability to continue working.  Korbel testified that, according to his neurologist, if he continued to work, he would be permanently disabled within a year. 

In a letter dated February 4, 2004, Kevin Siedschlag, the owner of All American Window, verified that Korbel “has a serious medical condition” that prevents him from working as a subcontractor.  Siedschlag noted that Korbel could work in sales, but that his income would be in the range of $400 to $600 a month, which would be considerably less than his previous income.  According to Korbel, he had sought alternative work by performing estimates for clients, but had earned only $1,200 from January to March 2004.  Korbel further testified that, as of April 2004, he could no longer work at all.  Korbel claimed that he was going to have back surgery but admitted that he had not yet scheduled the procedure. 

Based on the foregoing, the CSM determined that “[Korbel’s] testimony [was] not credible in light of the evidence before the Court” and found that “[Korbel was] healthy, able-bodied, and capable of working full-time.”  The CSM then concluded that, because Korbel produced insufficient evidence to verify his income, the court was authorized to impute income to him.  Based on the August 2002 separation decree and obligor fact sheet from the December 2003 hearing, the CSM determined that “[Korbel] has the ability to earn an average net monthly income of $2800,” after a $400 deduction for taxes. 

The CSM set Korbel’s support obligation at 25% of net income, or $700 per month beginning February 1, 2004, based on application of the child support guidelines for one child.  Because Korbel could not verify that he was paying child support and spousal maintenance as ordered by the August 2002 separation decree, the CSM did not give Korbel credit for his outstanding support obligations. 

After filing the notice of appeal to this court, the district court awarded Korbel sole physical custody of K.H.K., and Korbel’s child support obligation was suspended as of July 1, 2004.  The parties have therefore stipulated that the period at issue in this appeal is the five-month period from February 1 to June 30, 2004.  On July 14, 2004, Korbel underwent back surgery. 


We review a district court’s order awarding child support under an abuse-of-discretion standard.  Davis v. Davis, 631 N.W.2d 822, 826 (Minn. App. 2001).  The abuse of discretion standard also applies to orders issued by child support magistrates.  Putz v. Putz, 645 N.W.2d 343, 347-48 (Minn. 2002); see also Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000) (“[W]hen reviewing a child support magistrate’s order in an expedited child support process proceeding, we will apply the same standard of review that we would apply to the order if it had been issued by a district court[.]”).  Applying this standard, an abuse of discretion occurs when the CSM reaches “a clearly erroneous conclusion that is against logic and the facts on record.”  Putz,645 N.W.2d at 347. 


Korbel argues that the CSM abused its discretion by failing to account for his medical condition in awarding child support.  Korbel specifically challenges the CSM’s findings as to his ability to work, his net income, and his affiliation with All American Window.  He argues that, based on these erroneous findings, the resulting child support determination is against all logic and facts in the record. 

Factual findings, “whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous.”  Minn. R. Civ. P. 52.01.  Clearly erroneous means “manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.”  N. States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  In reviewing for clear error, we “cannot reweigh the evidence presented to the [lower] court” and must defer to the magistrate’s credibility determinations. Vangsness v. Vangsness, 607 N.W.2d 468, 475 (Minn. App. 2000).


            In regard to Korbel’s ability to work, the CSM found that, “[Korbel] is healthy, able-bodied, and capable of working full time.”  A review of the record does not support this finding. 

Uncontradicted medical documentation demonstrates that Korbel was suffering from a degenerative back injury that, at a minimum, limited his ability to perform manual labor.  Korbel provided the CSM with two doctor’s notes stating that he was unable to work from mid-December 2003 until mid-January 2004 and, beginning at the end of January, would be “unemployable due to medical problems.”  By letter dated February 25, 2004, Korbel’s physician Dr. Joseph Saccoman indicated, “[I]t is not likely that [Korbel] will be able to continue with his current employment that involves lifting and significant physical work.”  Dr. Saccoman concluded that Korbel’s “current back condition shows severe degeneration” and “he should not be working in his current job capacity.” 

Nothing in the record contradicts this documentary medical evidence.  In fact, the medical evidence is corroborated by the letter from Siedschlag and by Korbel’s oral testimony.  Siedschlag, Korbel’s supervisor and the owner of All American Window, stated that Korbel “has a serious medical condition” that prevents him from working as a subcontractor.  Korbel offered testimony that he worked a limited amount in February and March 2004 performing estimates, but as of April 2004 was unable to work while preparing for surgery.  According to Korbel, his neurologist reported that three discs in his lower vertebrae have degenerated, and if he continued to work, he would be permanently disabled within a year. 

Although the CSM was within her discretion to reject Korbel’s testimony as not credible, the CSM failed to offer any explanation for her rejection of the documentary medical evidence demonstrating that Korbel was in fact suffering from a degenerative back injury.  In our opinion, the findings that Korbel is “healthy” and “able-bodied” such that he can work full-time are “manifestly contrary to the weight of the evidence” and thus, clearly erroneous.  See N. States. Power Co., 304 Minn. at 201, 229 N.W.2d at 524.


            As to Korbel’s net income, the CSM found that, “[Korbel] has the ability to earn an average net monthly income of $2800.00 after the following deductions: $400.00 for federal, state, and Medicare taxes.”  Findings on net income will be affirmed on appeal if those findings have a reasonable basis in fact and are not clearly erroneous.  State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999).

An obligor’s monthly net income is equal to his or her actual monthly gross income minus certain deductions.  Minn. Stat. § 518.551, subd. 5(b) (2004); Putz, 645 N.W.2d at 348.  Permitted deductions include (1) federal and state income taxes; (2) social security and reasonable pension deductions; (3) union dues; (4) individual, group, or dependent health insurance coverage costs or actual medical expenses; and (5) a current child support or maintenance order.  Minn. Stat. § 518.551, subd. 5(6).  While it may not be easy to estimate actual income with accuracy, the CSM must make more than a guess.  County of Morrison ex rel. Gutzman v. Watland, 448 N.W.2d 71, 74 (Minn. App. 1989).

Here, because Korbel failed to produce more recent documentation, the CSM calculated Korbel’s 2004 net income based on the court’s finding in the August 2002 separation decree and the obligor fact sheet from the December 22, 2003 hearing.  In situations where an obligor fails to produce current income documentation, it is  acceptable to rely on prior income information.  Nicollet County v. Haakenson, 497 N.W.2d 611, 615 (Minn. App. 1993) (holding where the only evidence presented on current income was the obligor’s own testimony, a district court has discretion to base child support on financial information from a prior year).

But when relying on evidence as to prior income, as opposed to current income, the income must also be discounted to the extent demanded by the totality of the circumstances.  Darcy v. Darcy, 455 N.W.2d 518, 522 (Minn. App. 1990).   The Darcy court ruled that lower courts must consider the reasons for any disparity between the obligor’s prior income and his present income.  Id.  If the record demonstrates that the obligor will soon return to his former income status, the magistrate may base its net income finding on the prior income amount.  Bartl v. Bartl, 497 N.W.2d 295, 298-99 (Minn. App. 1993).  But if circumstances have changed significantly, evidence as to prior income does not support an accurate computation of the obligor’s ability to pay.  See Darcy, 455 N.W.2d at 522 (“[An obligor’s] prior income cannot be considered in a vacuum when evaluating [the obligor’s] . . . ability to pay child support.”).  Here, to ignore uncontradicted medical evidence of Korbel’s deteriorating condition is to consider Korbel’s prior income in a vacuum and set a child support obligation that does not comport with his ability to pay.

Because we have concluded that the CSM’s finding that Korbel was “healthy, able-bodied, and capable of working full-time” is erroneous, we further conclude that it was improper for the CSM to find that “[Korbel] has the ability to earn an average net monthly income of $2800.00,” when that income figure is grounded on the unsupported assumption that Korbel was able to work in his 2002 and 2003 capacity.  Because Korbel’s condition was degenerating, facts about his ability to work that were true at an earlier time were not necessarily true in April 2004.  Thus, the separation decree and the obligor fact sheet (which, we note, is not dated), while accurate as of the time they were written, are of limited probative value in determining the effect of a degenerative condition as of April 2004. The record demonstrates that due to Korbel’s degenerating back condition and decreasing ability to work, Korbel’s circumstances had changed significantly from 2003 to the date of the hearing.  It is therefore inappropriate to rely on financial documentation submitted months earlier to determine Korbel’s current ability to pay.  Considering the record as a whole, the CSM’s finding that Korbel “has the ability to earn an average net income of $2800.00” lacks a reasonable basis in fact and is clearly erroneous. 

Korbel argues that the CSM also erred in computing Korbel’s net income by deducting only $400 in taxes.  Permitted deductions include federal and state income taxes.  Minn. Stat. § 518.551, subd. 5(b).  In computing tax deductions, the standard deductions apply and the court should use tax tables to ensure accurate calculation.  Id.  Here, the CSM deducted $400 from Korbel’s $3,200 gross income for federal income tax, state income tax, and Medicare.  CSM adopted the finding of net income from the 2002 separation decree, which determined that Korbel’s after-tax income was $2800. 

Because no specific calculation was made under the current tax tables, the $400 figure, which ought to include federal tax, state tax, and, most importantly social security withholding for a self-employed person, is factually unsupported.  On remand, Korbel’s deduction for taxes should be calculated by referring to tax tables or financial documentation.

  Korbel also argues that the CSM erred by failing to deduct the amount owed on a prior support order.  Permitted deductions include a current child support or maintenance order.  Minn. Stat. ­§ 518.551, subd. 5(b).  But a prior support order will only be considered when setting a later order if the obligor is actually paying the earlier order.  Wollschlager v. Wollschlager, 395 N.W.2d 134, 135-36 (Minn. App. 1986).  Here, Korbel admitted that he ceased paying the earlier child support and maintenance order in December 2003 or January 2004.  Accordingly, the CSM properly refused to credit Korbel for the amount in the prior support order. 


            Korbel also challenges the CSM’s findings as to his involvement with All American Window.  Regarding Korbel’s ownership of the company, the CSM found that:

19.  The Obligee also testified that the Obligor had told her that he was the owner of All American, in the past, during their relationship.

            . . .

23.  A considerable amount of testimony was taken regarding whether the Obligor owned All American or whether he was an employee.  The Obligor repeatedly denied any ownership interests in All American.

            . . .

                        25.  The Obligor’s testimony is not credible in light of the evidence before the Court.  The evidence shows that the Obligor’s involvement with All American exceeds that which he represents. 


Finding No. 19 is clearly erroneous.  Williams never testified that Korbel told her that he owned All American Window.  Williams merely testified that Korbel represented to her that “he ran his own business.” 


Having determined that several of the CSM’s factual findings are unsupported by the record and, therefore, clearly erroneous, we conclude that the ruling requiring Korbel to pay monthly child support in the amount of $700 is against all logic and facts in the record.  Because the CSM erred in finding Korbel able-bodied and healthy, the CSM’s calculation of Korbel’s net income for the period from February 1, 2004, to June 30, 2004, was based on out-of-date documentation and therefore improper.  Because the CSM improperly calculated Korbel’s net income, we reverse the child support determination and remand for a recomputation of Korbel’s net income in light of our ruling. 

On remand, the CSM shall allow the parties to supplement the record with any additional relevant evidence that has arisen since the April 4, 2004 hearing, including, but not limited to, evidence that Korbel did in fact undergo back surgery on July 14, 2004 and has received custody of K.H.K. 


In its brief, the County requests that we strike several documents in Korbel’s appendix as outside of the record on appeal, but the County failed to file a separate motion to strike.  Because the County did not file a motion, we decline to consider the County’s request.  Minn. R. Civ. App. P. 127 (“Unless another form is prescribed by these rules, an application for an order or other relief shall be made by serving and filing a written motion for the order or relief.”).  Accordingly, we decline to consider the County’s request to strike.  See Claussen v. City of Lauderdale, 681 N.W.2d 722, 725 n.4 (Minn. App. 2004) (declining to review respondent’s request to strike portion of appellant’s brief where respondent did not file a motion), review denied (Minn. Sept. 21, 2004).

Reversed and remanded.

*   Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.