This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In re the Marriage of:
Scott Emmet Miller, petitioner,
Susan Marci Alexander-Miller,
Filed October 18, 2005
Hennepin County District Court
File No. DC 248 739
Michael L. Perlman, Perlman Law Office, Woodside Office Park, 10520 Wayzata Boulevard, Minnetonka, MN 55305 (for appellant)
Susan M. Lach, Messerli & Kramer P.A., 1800 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for respondent)
††††††††††† Considered and decided by Lansing, Presiding Judge; Stoneburner, Judge; and Worke, Judge.
U N P U B L I S H E D†† O P I N I O N
††††††††††† In this appeal from an amended marital-dissolution judgment, Scott Miller contends that the record is insufficient to support the district courtís determination of his net monthly income for purposes of child support. †Because the record supports the net-income amount, the finding is not clearly erroneous, and we affirm.
F A C T S
††††††††††† The judgment dissolving the marriage of Scott Miller and Susan Alexander-Miller provided that Miller and Alexander-Miller would share joint physical and legal custody of their minor child.† Under the terms of the stipulated judgment, Miller agreed to pay $1,350 a month in child support until June 30, 2002.† The judgment provided that the district court would, at that time, conduct a de novo review and impose a child-support obligation based on Millerís current income.†
The court conducted the de novo review in September 2002.† As evidence of his income, Miller submitted W-2 and 1040 tax forms from the 2000 and 2001 tax years and a paycheck from May 2002, which reflected gross annual incomes of $40,154, $44,181, and $18,800 (partial documentation), respectively.† Alexander-Miller disputed that these documents accurately established Millerís income because they failed to include a substantial number of in-kind payments made to or for Miller by his law firm in which he is a fifty-percent shareholder.† Alexander-Miller submitted copies of 107 cancelled checks issued to Miller for his net salary, car expenses, credit card charges, cell phone, medical insurance, deferred-compensation plan, and other miscellaneous expense reimbursements.† For the 2001 calendar year, the checks totaled $64,269, an average of $5,355.75 a month (salary: $34,432; automobile: $9,437; credit card: $12,329; phone: $1,002; insurance: $4,155; deferred compensation: $2,000; miscellaneous: $914).
In its findings, the district court incorporated the evidence of in-kind payments into Millerís monthly income.† But in applying the Hortis/Valento child-support formula, the district court used $5,356 as Millerís gross monthly income rather than his net monthly income and calculated his net monthly income as $3,379.† Although Miller disputes that this figure was a mistake, he acknowledges that the district court miscalculated his and Alexander-Millerís obligations under the Hortis/Valento formula by erroneously reversing the percentage of time their child spends with each parent.
In November 2002, Alexander-Miller moved under Minn. R. Civ. P. 60.01 for correction of the clerical errors in the child-support calculation.† A succeeding district court judge amended the findings to reflect that Millerís net monthly income, not gross monthly income, amounted to $5,356.† The district court also corrected the reversed percentages of custodial time attributed to each parent.† These amended findings increased Millerís child-support obligation from $202 a month to $602.16 a month.†
††††††††††† Miller appeals from the amended judgment, arguing that the evidence is insufficient to support the district courtís findings on Millerís net monthly income.† Alexander-Miller argues that this determination is not properly subject to review because Miller has not submitted a transcript of the proceedings.† Alexander-Miller previously moved to dismiss, alleging untimely and improper service.† In April 2005 a special-term panel of this court denied that motion.† Although Alexander-Millerís substituted counsel did not receive service, it was nonetheless effective because the motion was served on Alexander-Millerís attorney of record.† Because of outstanding motions for attorneysí fees related to the September 2002 order and to the directive in the December 2002 order to reopen and amend the judgment, the child-support decision did not become final and appealable until the amended judgment was entered in December 2004.
D E C I S I O N
first address Alexander-Millerís argument that Millerís failure to provide a
transcript of the proceeding precludes him from challenging the sufficiency of
the evidence to support the district courtís determination of his net income. †The record on appeal consists of ď[t]he papers filed in the
trial court, the exhibits, and the transcript of the proceedings.Ē†
The failure to submit a
transcript can limit the scope of review on appeal.† See
A district court has broad
discretion to provide for the support of dependent children in a
marital-dissolution proceeding.† Rutten v. Rutten, 347 N.W.2d 47, 50 (
A review of the record establishes that the district courtís amended finding of Millerís net monthly income is notclearly erroneous.† For purposes of child support, ďnet incomeĒ includes ďin-kind payments received by the obligor in the course of employment, self-employment, or operation of a business if the payments reduce the obligorís living expenses.Ē† Minn. Stat. ß 518.551, subd. 5(b)(1) (2004).† The court had ample evidence in the record to support its finding that Miller received in-kind payments and that his net monthly income was $5,356.† Although Miller provided some evidence of a possible reduction in his 2002 income, the evidence included income only from January to May 2002.† The checks that Alexander-Miller submitted were dated through June 2002 and demonstrate substantial additional income. †Miller has not disputed that he received the additional income.† The court reasonably rejected Millerís partial evidence of reduced current income because Millerís submissions were incomplete.†
The copies of the checks that Alexander-Miller submitted were specifically attributable to Millerís net income, and Miller has demonstrated no inaccuracy or error in the attribution.† The finding in the amended judgment that Millerís net monthly income is $5,356 has a logical basis in fact and is not clearly erroneous.† Using this net monthly income, the court correctly calculated Millerís child-support obligation under the Hortis/Valento formula as $602.16 a month.† The district court did not err in determining Millerís net income or abuse its discretion in calculating Millerís child-support obligation.