This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re the Matter of:
Constance Sue Tipler, petitioner,
Thomas Leslie Edson,
County of Anoka, intervenor,
Filed May 23, 2006
Anoka County District Court
File No. F8-96-51031
Robert M.A. Johnson, Anoka County Attorney, Bethany A. Fountain Lindberg, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Seventh Floor, Anoka, MN 55303 (for respondent County of Anoka)
Considered and decided by Hudson, Presiding Judge, Worke, Judge, and Crippen, 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 modification dispute, appellant argues that the district court overstated his income available for child-support purposes by including overtime income and by using an income-averaging method to find his income. The court’s findings being adequately supported by the record, we affirm.
Appellant Thomas Edson and respondent Constance Tipler are the parents of a child born in January 1994. In August 1996, the district court ordered appellant to pay respondent $430 per month in child support. In September 1997, an administrative law judge increased appellant’s child-support obligation to $769 per month.
Late in September 2003, appellant was incarcerated. In March 2004, appellant’s duties to provide ongoing child support, medical support, and child-care support were suspended. Noting that respondent’s anticipated release date was December 2004, a child support magistrate set a review hearing for February 8, 2005, to determine appellant’s income and ability to pay child support at that time.
On February 2, 2005, appellant filed a motion to defer suspension of his driver’s and/or occupational license and an affidavit contesting, among other things, the amount he owed in arrears. At the subsequent hearing, the county agreed not to suspend appellant’s driver’s license or occupational license and argued that appellant’s child-support obligation should be calculated based on his average reported income over the preceding five years. Appellant disputed the county’s calculation because it included overtime pay in his earnings
At the time of the hearing, appellant was earning $33.25 per hour as a member of Minneapolis Pipefitters Local Union 539. He received referrals through his hiring hall and worked each job referred to him for a fixed duration. After a job was finished, appellant was laid off and would return to the hiring hall for a new placement; consequently, employment was not continuous. Appellant testified that working 2,080 hours per year, the hours for full-time employment, is “unheard of” in his trade. Appellant also explained that his gross income had increased because of overtime pay but that overtime pay for his union is not mandatory.
In its order, the magistrate included appellant’s overtime earnings in his income available for child support purposes because it found that appellant did not present documentation to show that overtime was voluntary for all of his placements. The magistrate declined to impute to appellant full-time earnings at $33.25 per hour but instead determined appellant’s income by averaging the preceding several years of reported income. Using 1999 as the earliest year, because appellant had been incarcerated for part of 1998, the court listed the following annual incomes for appellant: $56,841 in 1999; $62,653 in 2000; $60,848 in 2001; $29,197 in 2002. The court also included in its calculation appellant’s earnings of $42,758.22 during the first three quarters of 2003. Averaging his income from those five years and making the appropriate deductions, the court concluded that appellant’s average net annual income was $35,549.03. Based on that annual income, the magistrate set appellant’s child support obligation at $740 per month, which was not a deviation from the guidelines. See Minn. Stat. § 518.551, subd. 5(b) (2004). Additionally, the magistrate declined to address appellant’s challenges to his arrears “as they were not properly plead and were not before the court at the review hearing.” The district court subsequently affirmed the magistrate’s findings without opinion.
D E C I S I O N
The district court has wide discretion in considering
motions to modify child support, and a district court’s order on modification
will be reversed only if it is against logic and the facts on record. Putz v.
Putz, 645 N.W.2d 343, 347 (
Appellant argues that the
district court erred by including overtime pay in his net income available for
child-support purposes. On a motion for
modification of child support, a court may not consider compensation received
by a party for employment in excess of a 40-hour work week, if the party
demonstrates, and the court finds, inter
alia, that the overtime is voluntary.
Minn. Stat. § 518.64, subd. 2(c)(2) (2004). The party seeking to exclude overtime wages
from a calculation of child support has the burden of demonstrating that the
wages qualify for the statutory exemption.
Appellant contends that the district court clearly erred by finding that he failed to prove that his overtime was voluntary. But his claim rests on the assertion that his working agreement with the union designates all overtime and double time as voluntary. Appellant failed to cite any specific provision in support of his claim, and our review of the agreement did not find any provision stating that overtime work was voluntary. Because appellant bears the burden of showing that his overtime qualifies under Minn. Stat. § 518.64, the court did not clearly err by finding that appellant failed to show that his overtime was voluntary and did not abuse its discretion by including appellant’s overtime pay when calculating his income available for child-support purposes.
Appellant also argues that the method used by the district court to calculate appellant’s income was an abuse of discretion. Failing to assign any specific error or cite any legal authority for his argument, appellant contends that the district court erred by averaging his income.
Where a child-support obligor’s income fluctuates, an income averaging method takes into account fluctuations and more accurately measures income. Veit v. Veit, 413 N.W.2d 601, 606 (Minn. App. 1987) (holding that when self-employed business income fluctuates, income averaging more accurately measures obligor’s net income); see also Minn. Stat. § 518.57, subd. 2 (2004) (addressing seasonal income). Appellate courts have not set any standard time period for averaging income. See, e.g., Veit, 413 N.W.2d at 606 (three-and-a-half years); Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 363 (Minn. App. 1987) (five years), review denied (Minn. Oct. 28, 1987). And an inclusion of an unusually good or bad year in the time frame is not necessarily erroneous. See Veit, 413 N.W.2d at 606 (holding that trial court did not err in including “financially disastrous year” in calculating obligor’s net monthly income).
Appellant fails to
demonstrate how the district court’s five-year average calculation was clearly
erroneous. Given the nature of
appellant’s work, in that his hours can vary greatly from week to week,
income-averaging is notably appropriate to measure his income.
Appellant also briefly contends that the district court failed to consider the needs of his child when determining his child-support obligation. But appellant fails to specify which needs the court should have considered. And he fails to indicate what evidence in the record would have allowed findings other than those made by the district court.
Appellant argues that the
district court erred by declining to address the arrearages arguments set out
in his February 2, 2005 affidavit.
Motion practice in family court is governed by
Although appellant had notice of the February 8, 2005 review hearing for eleven months, he did not file his affidavit contesting his arrears until February 2, 2005. As a result, the court declined to address the argument in his affidavit because it was not properly pleaded and was not before the court at the previous review hearing.
The record supports the
district court’s decision. At the March
2004 hearing, the magistrate did not address the calculation of appellant’s
arrears. And when the magistrate
scheduled the February 2005 hearing, she explicitly stated that the purpose of
the hearing was to determine appellant’s income and ability to provide child
support. Thus, appellant’s affidavit
challenging arrears calculations raised a new issue. Accordingly, that affidavit should have been
served and filed at least ten days before the hearing.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.