This opinion will be unpublished and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 Paternity of B.M.H.
n/k/a Erin E. Leach, petitioner,
Filed September 6, 2005
Hennepin County District Court
File No. MF 279007
Michael D. Dittberner, Clugg, Linder, Dittberner & Remington, Ltd., 3205 West 76th Street, Edina, Minnesota 55435-5244 (for respondent)
Matthew R. Hobbs,
Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant argues that the district court abused its discretion by denying appellant’s motion to modify his child-support obligation. Because the district court’s findings are supported by the record and appellant failed to satisfy the statutory criteria for modification, we affirm.
Hobbs and respondent-mother Erin Leach are the parents of 7-year-old B.H. The parties were never married. Father was adjudicated B.H.’s parent by
judgment in September 1998 in
In March 2001, following
mediation, the parties reached a stipulation regarding parenting time and
financial support. The stipulation
states that the parties would share joint legal custody and have “shared
parenting time,” without labeling the parents’ custody arrangement as either
joint physical custody or sole physical custody with parenting time. With respect to child support, the
stipulation provides that “Father will pay to the Mother the amount of $450 per
month including contribution to day care.
The agreed upon support is substantially in accord with
guidelines.” The stipulation does not
indicate how the parties calculated the amount of $450 or what percentage of
the amount represents father’s contribution to day-care expenses. The Monroe County Circuit Court adopted the
stipulation as the final order of the court in April 2001. Both parties now reside in
In September 2003, father moved to modify child support, requesting: (1) a finding that the nature of the “shared” parenting time was consistent with joint physical custody; (2) a modification of child support under the Hortis/Valento formula for joint physical custody; and (3) a modification of child support based on father’s substantial student-loan debt and expenses. In response, mother filed a motion in October requesting an increase in father’s child-support obligation.
The child-support magistrate
held a hearing on father’s motion on October 31, 2003. The magistrate found that father’s motion was
based in large part on his claim that “shared” parenting time in
The parties continued to file additional documentation regarding father’s motion. Father filed a responsive affidavit on December 4, 2003. Mother filed an affidavit in response to father’s responsive affidavit. Both parties also submitted letters directly to the court.
Following a hearing, the referee denied both parties’ motions by order dated March 10, 2004. Because the referee neither authorized nor requested the parties to submit additional correspondence to the court, the referee refused to consider any filings after mother’s responsive affidavit in October 2003. Father sought review of the referee’s order.
In a July 7, 2004 order, the
district court denied father’s notice of review and affirmed the referee’s order. The district court concluded that the
arrangement of shared parenting time under
D E C I S I O N
Father first challenges the referee’s decision to exclude his December 4, 2003 affidavit, arguing that the referee abused its discretion in refusing to admit the filing because (a) mother’s October 27 filing was untimely filed and did not contain a notice of time to respond and (b) father submitted his December 4 filing in response to new issues raised by mother’s October 27 pleading.
A party responding to a motion must file with the district court, and serve on opposing counsel, a memorandum of law or supporting affidavit at least five days before a hearing on the motion. Minn. R. Gen. Pract. 303.03(a)(3). New issues raised in a motion by a responding party must be served on opposing counsel and filed with the court administrator at least ten days prior to the hearing. Minn. R. Gen. Pract. 303.03(a)(2). If a party fails to comply with the rule, then "[t]he court, in its discretion, may refuse to permit oral argument by the party not filing the required documents, may consider the matter unopposed, . . . or may take other appropriate action." Minn. R. Gen. Pract. 303.03(b).
Here, the district court did not consider father’s December 4 filing because it did not solicit additional filings from the parties following the hearing on October 31, 2001. The district court did not abuse its discretion. Mother’s October 27 brief did not conform to the rules, but sanctions are discretionary with the district court, and father did not argue that the district court abused its discretion in considering mother’s brief. To the extent that father’s excluded affidavit addressed mother’s response to his motion for modification, father’s affidavit was not filed within five days before the October 31 hearing and was therefore untimely. To the extent that the excluded affidavit addressed mother’s motion to modify child support, the district court improperly denied father the opportunity to respond to a motion it considered on the merits. Father has not been prejudiced, however, because the district court denied that motion, and father therefore prevailed.
Father next challenges the district court’s finding of his net income. A district court’s determination of an obligor’s income for child-support purposes is a finding of fact that will not be set aside if it has a reasonable basis in fact and is not clearly erroneous. Minn. R. Civ. P. 52.01; State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999); see also Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000) (stating “[t]hat the record might support findings other than those made by the [district] court does not show that the court’s findings are defective”). The district court found that father’s net income was $1,753 per month. The district court’s calculation is based on a pay stub from a pay period ending August 30, 2003, that father attached to his affidavit supporting his motion to modify child support, which showed a net year-to-date income of $15,372.62.
Father argues that the
district court’s net-income finding is erroneous because the year-to-date
totals reflected in father’s pay stubs are inflated by the inclusion of
employee benefits—such as food and uniform allotments and “buddy passes”—that
do not translate into a tangible source of income. We disagree.
Because these in-kind disbursements to father contribute to payment of or
reduce his living expenses, they can be considered when determining his income
and ability to pay support. Cf. Minn. Stat. § 518.551, subd. 5(b)(1)
(2004) (noting “net income” for support purposes includes “in-kind payments
received by the obligor in the course of employment” if those payments “reduce
the obligor’s living expenses”); Minn. Stat. § 518.551, subd. 5(c)(1) (2004)
(requiring district court to consider “all earnings, income and resources of
the parents” when setting support).
Moreover, there is no evidence in the record to suggest that these
employee benefits constituted a sufficiently significant portion of father’s
income to render the district court’s finding clearly erroneous. See
Wibbens v. Wibbens, 379 N.W.2d 225, 227 (
Father also argues that the district court’s method of calculating net income using figures from father’s pay stub contradicts the legislative intent of the guidelines because the withholding amounts do not accurately reflect his actual tax liability. The guidelines state that standard deductions apply and recommend the use of tax tables when calculating income-tax liability for purposes of net income. Minn. Stat. § 518.551, subd. 5(b) (2004).
The record supports the district court’s finding on this issue. While section 518.551, subdivision 5(b), recommends the use of tax tables, there is no requirement that they be used. The section does require, however, a deduction for tax liability. We do not recommend the use of withholding amounts in determining the deduction for tax liability, as withholding amounts may be subject to manipulation. But, here, father did not provide to the magistrate his W-4 form or federal/state tax tables as evidence of his level of withholding. Considering the limited evidence available to the district court, its net income finding is not clearly erroneous.
Father next challenges the district
court’s characterization of the parties’ custody arrangement as sole physical
custody with liberal parenting time. A district court has broad
discretion to provide for the custody of the parties’ children. Durkin
v. Hinich, 442 N.W.2d 148, 151 (
The crux of this dispute is whether the Wisconsin
judgment granting the parties “shared parenting time” in the form of shared
physical placement of B.H. is the equivalent of a grant by a
Father first argues that the
Wisconsin judgment unambiguously articulates a custody arrangement tantamount
to joint physical custody in
Father’s argument fails to
demonstrate that “shared physical placement” in
What an ambiguous judgment provision
means is a factual question. Emerick ex rel. Howley v. Sanchez, 547 N.W.2d 109, 112 (
Father also argues that interpreting
Father next challenges the district
court’s determination that he failed to satisfy his burden of demonstrating
substantially changed circumstances necessary to modify his child-support
obligation. Whether to modify support is
discretionary with the district court. Moylan v. Moylan, 384 N.W.2d 859, 864 (
Generally, a stipulation fixing the
respective rights and obligations of the parties represents their voluntary
acquiescence in an equitable settlement, and the district court should “carefully
and only reluctantly” alter its terms. See Claybaugh
v. Claybaugh, 312 N.W.2d 447, 449 (
Father first argues that the district court erred by failing to make sufficient findings on the statutory factors. “While the record may support a trial court’s decision, it is nevertheless inadequate if that record fails to reveal that the trial court actually considered the appropriate factors.” Moylan, 384 N.W.2d at 865. The district court made findings with respect to father’s net income and calculated father’s child-support obligation under the guidelines. The district court adopted the referee’s finding that father “has not met the criteria in Minn. Stat. § 518.551, Subd. 5(d), required for having his personal debts taken into account in determining his net income” because father’s standard of living had increased along with his cost of living, and father had not alleged that the increase in his cost of living was due to unforeseen or involuntary causes. Accordingly, the district court did not make a calculation of father’s current expenses. Father did not allege any other change in circumstances (i.e., increased needs of the child, receipt of public assistance, extraordinary medical expenses) that would necessitate additional findings. It is clear from the findings that the district court considered the appropriate statutory factors.
next argues that the elimination of B.H.’s day-care expenses constitutes a
substantial change in circumstances sufficient to support modification. We disagree. The
Finally, father argues that the district court erred by mechanically applying the guidelines to father’s net income without considering the amount of parenting time father has with B.H. According to father, his parenting time exceeds the amount of time contemplated in a traditional sole-custodial arrangement, and, therefore, consideration should be given to the amount of parenting time “when establishing a support obligation.” Father misconstrues the nature of his motion—a motion to modify an already-existing support obligation. Unless father demonstrates a substantial change in circumstances that renders the current support obligation unreasonable and unfair, father’s parenting-time schedule is not relevant to the district court’s decision whether to modify support.
Father argues that the
district court erred by “using as its basis to deny modification a current
support amount that invalidly deviated from the guidelines, and therefore,
cannot be determined to be either reasonable or fair in the first
instance.” Father’s argument is
Father next contends the district
court abused its discretion by not applying the Hortis/Valento child-support formula. Use of the Hortis/Valento formula when
one parent has sole physical custody is a deviation from the child-support
guidelines and must be supported by findings on the statutory factors
enumerated in Minn. Stat. § 518.551, subds. 5(c), (i) (2004).
Finally, father argues that the
district court (1) abused its discretion by refusing to consider father’s
student-loan debts when calculating his net income and (2) erred by assuming
jurisdiction over the Wisconsin judgment under the Uniform Interstate Family
Support Act (UIFSA), Minn. Stat. §§ 518C.101–.902 (2004). With respect to his student loan debt, father concedes in his brief
that he did not present this information to the referee in the proper
form. Accordingly, the issue is deemed
waived, and this court need not consider it here. See Thiele v. Stich, 425 N.W.2d at 582
(noting that an appellate court will not consider matters that were not argued
and considered in the district court). And, under the UIFSA, a