This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In re the Marriage of:
Susan C. Ferris, petitioner,
Jay J. Ferris,
Dakota County District Court
File No. F1-03-13934
Sally K. Mortenson,
Ronald B. Sieloff, Sieloff and Associates, P.A., Yankee
Square Office III,
Considered and decided by Kalitowski, Presiding Judge; Toussaint, Chief Judge; and Parker, Judge.*
U N P U B L I S H E D O P I N I O N
In this dissolution matter, appellant argues that the trial court abused its discretion in making certain findings of fact, in awarding maintenance, and in setting child support. Because we see no abuse of discretion or erroneous application of the law, we affirm.
Appellant Jay Ferris and respondent Susan Ferris are the parents of two children, V.F., born in 1987, and B.F., born in 1988. In 2004, the parties stipulated to a judgment that dissolved their marriage, divided their marital assets and debt, and gave appellant custody of B.F. and respondent physical custody of V.F. The judgment expressly reserved for trial the issues of child support, spousal maintenance, and attorney fees. After the trial, the court issued its supplemental findings of fact, conclusions of law, and order.
Appellant moved for amended findings and a new trial, which the court denied. He appeals from that denial, challenging the trial court’s findings as to respondent’s net monthly income, as to appellant’s reasonable and necessary expenses, and as to appellant’s ability to pay and respondent’s need to receive rehabilitative spousal maintenance. Appellant also challenges the trial court’s decisions to make child support retroactive and to make a single, net child-support award.
D E C I S I O N
Respondent’s Net Monthly Income
a finding of net income for child-support purposes is affirmed on appeal 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 (
Appellant argues that respondent’s net monthly income from her daycare business is greater than the amount determined by the trial court. Respondent continues to run the full-time daycare business out of her home, as she did during the marriage. Appellant contends that the court abused its discretion in deducting 43% of the home expenses as a business expense, because the parties had previously deducted only 31%, and in accepting food expenses that were higher than in previous years. Respondent’s certified public accountant (CPA) testified that she accepted the 43% allocation in respondent’s 2003 tax return with her client’s representation that her records supported them. She also testified that respondent’s expenses are consistent with those of her ten or so other daycare business clients. Respondent testified that her expenses were based on receipts. The trial court did not err in accepting this factual basis for its findings.
Appellant argues further that respondent failed to produce receipts to support the amounts she claimed as expenses. But the record contains respondent’s statement of income and expenses for the relevant time period, and statements of income and expenses, as well as tax returns, are acceptable documentation for the self-employed. Minn. Stat. § 558.551, subd. 5b(a) (2004). Moreover, appellant cites no authority requiring that every receipt for every expense be produced and admitted at trial.
Appellant complains that respondent inflated her work hours by including tasks such as window washing, carpet cleaning, and other tasks performed outside of the daycare’s operating hours as business use of the home. But the record contains respondent’s calendar detailing the various tasks that she performed for her business, and the trial court’s conclusion that these tasks qualified as business use of the home for a ten-child daycare business was not an abuse of discretion.
the record might support findings other than those made by the trial court does
not show that the court’s findings are defective.” Vangsness
v. Vangsness, 607 N.W.2d 468, 474 (
Respondent notes that there “appears to be an error” because the trial court added depreciation expense to the respondent’s net income. But respondent did not notice the issue for review as required by Minn. R. Civ. App. P. 106, fully brief the issue, orally argue the issue at the hearing, or otherwise demonstrate that it was a significant error in light of the correctness of the judgment as a whole. Therefore, we decline to address it.
Appellant’s Reasonable and Necessary Expenses
the obligation to pay child support is based on the obligor’s ability to
v. Schneider, 473 N.W.2d 329, 332 (
But the trial court allowed the same categories of reasonable expenses for both parties, and their property division in the stipulated judgment and decree also expressly took into account the division of debt. Therefore, the trial court did not abuse its discretion in excluding these debt payments from appellant’s expenses. The costs associated with the recreational property clearly were not debt reasonably incurred for necessary support under Minn. Stat. § 518.551, subd. 5(d) (2004). Therefore, the trial court had a reasonable factual basis for excluding them from its determination of appellant’s reasonable monthly expenses.
Award of Temporary Spousal Maintenance
court reviews a district court’s spousal-maintenance award under an abuse-of-discretion
standard. Dobrin v. Dobrin, 569 N.W.2d 199, 202 (
To determine a spouse’s ability to pay, “the court must make a determination of the payor spouse’s net or take-home pay.” Kostelnik v. Kostelnik, 367 N.W.2d 665, 670 (Minn. App. 1985), review denied (Minn. July 26, 1985). Appellant does not dispute the court’s calculation of his net monthly income, but claims he has no ability to pay maintenance. After deducting his child-support obligation and reasonable expenses, appellant is left with “available cash” of $1,150.58 per month. Therefore, appellant has not shown that he has an inability to pay spousal maintenance of $575 per month.
Appellant disputes the trial court’s finding that respondent needs further education to find suitable employment. Respondent testified that she has no special training or skills and could not obtain suitable employment outside of the home; although she receives income from her daycare business, she receives no employment benefits and has no opportunities for advancement. She testified that a business-administration degree would complement her work experience and make her more marketable and independent. The trial court had a reasonable basis in fact for determining that rehabilitative maintenance would allow respondent to improve her ability to be self-sufficient.
The trial court considered the factors in Minn. Stat. § 518.552, subd. 1(a), and found that six years of further education would facilitate respondent obtaining employment outside of the home with benefits. After finding that respondent’s income was insufficient to pay for this education and that appellant had funds to pay for it, the court concluded that an award of $575 per month for six years was equitable.
appellant now offers various education options for respondent, he did not present
those options at trial with supporting evidence. This court does not review matters not
presented to the trial court. Thiele v. Stich, 425 N.W.2d 580, 582 (
Appellant argues that the trial court demonstrated bias against daycare work and prejudice. Appellant did not allege bias or prejudice below and did not seek to remove the judge from the case. Therefore, this court declines to review the issue. Thiele, 425 N.W.2d at 582.
Appellant claimed initially that the trial court incorrectly made the child-support award retroactive to January 1, 2004, but conceded at oral argument that the court had the discretion to set that date. Appellant claimed an abuse of discretion, however, in the court’s failure to support the decision on that date with findings. The date chosen by the court was one week before the trial at which all of the facts concerning the parties’ income, standard of living, and expenses were put on record. The court later made ample findings supporting the date and the amount of the child-support award.
Finally, appellant argues that the trial court erred by making a single child-support award in its conclusions. The court found that each parent owed child support to the other, subtracted respondent’s $575.11 obligation from appellant’s $1,041.96 obligation, and ordered appellant to pay respondent $466.85 monthly. Although the children’s ages indicate that the circumstances will be changing, the trial court could only speculate as to what the changes would be and when they would occur. Therefore, the court did not abuse its discretion in making a single award based on the facts available and will, as the facts warrant, entertain motions to modify.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI § 10.