This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2055

 

In re the Marriage of:

 

Deborah Lee Hall, petitioner,

Appellant,

 

vs.

 

Robert Earl Hall, Jr.,

Respondent.

 

Filed ≠≠≠June 28, 2005

Affirmed

Dietzen, Judge

 

Washington County District Court

File No. F9-98-125

 

Kenneth J. Jacobs, 1068 South Lake Street, Suite 105, Forest Lake, MN 55025 (for appellant)

 

Gregory D. Dittrich, 600 Inwood Avenue North, Suite 260, Oakdale, MN 55128 (for respondent)

 

††††††††††† Considered and decided by Hudson, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

U N P U B L I S H E D†† O P I N I O N

 

DIETZEN, Judge

 

††††††††††† In this post-dissolution proceeding, appellant challenges the district courtís denial of her motion to increase respondentís child-support obligation, arguing that escrowed funds deducted from respondentís paycheck for vacation and sick time should be included in the calculation of net income.† Because the escrowed funds are not available to respondent as income, we affirm.

FACTS

 

††††††††††† Appellant Deborah Hall and respondent Robert Hall dissolved their marriage in December 1999.† Two children were born during the marriage: J.R.H. in February 1989 and J.L.H. in March 1994.† The dissolution judgment and decree issued by the district court specified that the parties would share joint legal custody of the children, and appellant would receive sole physical custody subject to parenting time with respondent.† The district court heard testimony regarding calculation of respondentís income and ordered respondent to pay guideline support for the children based on a 40-hour work week at $27.13 per hour, totaling a gross annual salary of $56,430.40.† In calculating respondentís net income, the court deducted $170 per week for funds his union escrowed into an account for vacation and sick time.† Respondent works as a union pipefitter.† Pipefitters do not receive paid vacation and sick days but rather have money deducted from their paychecks and escrowed into an account to fund time off when it is taken.† The escrowed funds are not available to respondent as income unless or until he takes vacation or sick time.† Appellant filed a motion for amended findings, challenging the vacation and sick-time deduction but the court denied the motion.

††††††††††† In March 2002, respondent filed a motion for a change in custody of the partiesí children.† Following a hearing and testimony by a family counselor, the parties stipulated to modify physical custody of J.R.H. from sole by appellant to joint by both parties.† The stipulation specified that J.R.H. would spend all but the first and last weeks of the summer of 2003 with respondent.† If the arrangement proved successful, the parties agreed to begin calculating child support using the Hortis/Valento formula in the summer of 2004.† In December 2003, the district court incorporated the partiesí stipulation into an order.

††††††††††† In May 2004, appellant moved for, among other things, modification of respondentís child-support obligation and an order requiring respondent to report his income to her yearly.† Appellantís accompanying affidavit stated that respondentís income had increased substantially since the 1999 judgment and decree.† Respondent filed a responsive motion and affidavit attaching his 2002 and 2003 income tax returns.† The child support magistrate (CSM) recalculated respondentís income using these tax returns and denied the request to increase respondentís child-support obligation.† The CSM stated that there was no ďsubstantial change in circumstances that renders the existing order unreasonable and unfairĒ based on the fact that the guideline support obligation was not ď20% and $50 more than the current obligation.Ē† The CSMís calculation included the deduction for vacation and sick time because ďthis deduction was allowed in the calculation of the respondentís income in the judgment and decree.Ē† Appellant then moved for review, challenging the district courtís finding of fact that $170 should be deducted from respondentís weekly income for his vacation and sick time fund because there was no proof that respondent actually used the vacation or sick days.† In an order denying review, the CSM stated that appellantís request for further proof of vacation and sick days taken was without merit because the original decree contained no requirement that the banked vacation or sick days must be used in the period in which they accrue.† Appellant challenges the CSMís decision.

D E C I S I O N

 

††††††††††† This court reviews a CSMís order concerning child support under the same standard of review that would be used if the order had been issued by the district court.† Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000).† A district court has broad discretion to determine child support and abuses that discretion only if the resulting obligation is contrary to logic and the facts in the record.† Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).† The record on appeal to this court is limited to what was available for review below.† Davis v. Davis, 631 N.W.2d 822, 826 (Minn. App. 2001).[1]

††††††††††† Appellant contends that the CSM erred by deducting respondentís vacation and sick time allowance from his income for purposes of calculating his child-support obligation.† This court will affirm a determination of net income for child-support purposes if it has a reasonable basis in fact and is not clearly erroneous.† State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999).

The CSM based the continued deduction on the district courtís original income calculation for respondent, stating:

††††††††††† As the respondent is paid by the hour and does not receive any allowance for vacation or sick leave, the $170 per week credit union deduction that is used by the respondent to cover vacation and sick leave will be allowed as a deduction in calculating the respondentís income for child support purposes.† This deduction was allowed in the calculation of the respondentís income in the judgment and decree.

 

††††††††††† Child-support obligations are based on the obligorís net monthly income.† Minn. Stat. ß 518.551, subd. 5(b) (2004).† Net income is total monthly income less federal and state income taxes, social security deductions, reasonable pension deductions, union dues, dependent health insurance coverage costs, individual or group health coverage costs, and other child support or maintenance that is currently being paid.† Id.† The statute does not specify whether escrowed funds for vacation and sick time are deductible.† But the definition of income is based on money actually available to the obligor.† See Lenz v. Wergin, 408 N.W.2d 873, 876 (Minn. App. 1987) (ďNet income is properly calculated based upon money available to the taxpayer.Ē); Dinwiddie v. Dinwiddie, 379 N.W.2d 227, 229 (Minn. App. 1985) (same).

††††††††††† Appellant argues that the deduction is improper because ď$170 per week is deducted for vacation and sick time without proof that unpaid vacation has actually been taken out or unpaid sick days have actually been incurred by the respondent.Ē† But a review of the record reveals that whether or not the days were actually taken, the money is deducted from respondentís weekly paychecks.† The district courtís record contains copies of 24 of respondentís weekly paystubs dating from November 8, 2000, through April 18, 2001.† Every one of these paystubs contains a deduction for union fees for vacation/sick time.† The deductions range from $102.00 per week to $265.63 per week.† The parties do not dispute that respondentís union continues this method of handling employee vacation and sick time.† Thus, based on our review of the record, we conclude that the district court and the CSMís deductions of $170 per week were a reasonable average.

Moreover, contrary to appellantís contention, whether or not respondent has taken the vacation or sick days is not dispositive.† Because the vacation and sick-time deduction is not income actually received by respondent, but is escrowed into an account to supplement income only when respondent takes vacation or sick time, it should not be included as part of net income.† See Lenz, 408 N.W.2d at 876; Dinwiddie, 379 N.W.2d at 229.† Thus, the CSM did not abuse her discretion by deducting union escrowed funds for vacation and sick time from net income in calculating respondentís child-support obligation.††

††††††††††† Affirmed.



[1] Respondent argues that appellant waived her right to appellate review of the vacation and sick-time deduction because she failed to appeal the district courtís 1999 decree.† But the record reveals that appellant moved for amended findings of the CSMís order on January 4, 2000, and challenged the vacation and sick-time deduction at that time.† While appellant did not further file a notice of appeal to this court, respondentís waiver argument is without merit because raising the issue in a postdecision motion is sufficient to preserve the issue for appeal.† See Kitchar v. Kitchar, 553 N.W.2d 97, 100 (Minn. App. 1996), review denied (Oct. 29, 1996).† Similarly, respondentís laches argument, that appellant ďprocrastinated unreasonably or without excuse,Ē is consequently also without merit.