This opinion will be unpublished and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 Marriage of:
Mary Melissa Martin, petitioner,
Kurt Wayne Martin,
Filed December 5, 2006
Crow Wing County District Court
File No. F0-01-250
Mary Melissa Martin,
Donald F. Ryan,
Kurt Wayne Martin,
Considered and decided by Wright, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.
Appellant, a self-employed business owner, moved to
decrease his child-support obligation. A
child support magistrate (CSM) denied appellant’s motion, finding that it was
not possible to determine appellant’s income and that, therefore, appellant did
not meet his burden of producing sufficient information to warrant a
modification. Appellant sought district
court review of the CSM’s ruling, and the district court affirmed the CSM. Appellant now argues that (1) the district
court is legislating from the bench by requiring verifiable proof of income from
tax returns rather than statements of gross receipts and expenses, (2) the
district court did not make adequate findings of fact, and the findings that
were made were insufficient or contradicted by the evidence, (3) the
conclusions and order are not supported by adequate findings, (4) the district
court made an unfounded challenge of an alleged business expense and
depreciation deduction after the close of the record, and (5) Crow Wing County has
de facto established appellant’s proffered evidence of income as credible by
citing to it in its memorandum of law after the district court failed to
acknowledge and recognize the evidence.
Appellant also appeals the district court’s order granting
The marriage of appellant Kurt Martin and respondent Mary Martin was dissolved in November 2002. The parties have two children, one of whom is a minor born on June 24, 1992. They share joint legal custody of their minor child, while respondent has sole physical custody.
Modification of Child Support
By the terms of a June 2004 order, appellant was ordered to pay child support of $1,147 per month based on his net monthly income of $4,583. In June 2005, appellant moved the CSM, pursuant to Minn. Stat. § 518.64 (2004), for an order modifying his child-support obligation. Appellant alleged a substantial decrease in his net monthly income. Respondent brought a countermotion for an increase in child support. In support of his motion, appellant submitted a W-2 form which showed a total 2004 gross annual income of $67,108. But appellant did not provide any verification of his 2004 income other than the W-2 form and certificates of rent paid. At that time, appellant had not filed his 2004 tax returns. In addition, appellant “specifically stated that he d[id] not wish to provide any information on his monthly household expenses.”
In an order filed August 4, 2005, the CSM found it “impossible to determine [appellant’s] actual gross and net monthly income for purposes of child support as there [was] no way to analyze his receipts, expenses, and deductions for such items as depreciation and use of personal residence for office purposes.” As a result, the CSM denied appellant’s motion to modify his child-support obligation, concluding that “any party making such a motion has the burden of producing evidence which would justify the relief requested in their respective motions” and that appellant did not “provide sufficient information to grant the relief requested in [his] motion.” Respondent’s motion was also denied.
In October 2005, appellant renewed his motion for child-support modification. In support, appellant submitted an income statement for 2004, in addition to the documents previously submitted; but appellant still had not filed his 2004 income tax returns. Appellant also stated that he did not know what his 2005 income was. The CSM denied appellant’s request to modify his child-support obligation, again finding that it was impossible to determine appellant’s monthly income for child-support purposes without income tax returns and verification of actual income and expenses, especially with regard to his claim of his use of his home for business purposes and depreciation deductions.
In November 2005, appellant moved for review of the CSM’s decision. Appellant contended that “he should not be required to produce copies of his income tax returns or other verification of his actual income and expenses.” The district court denied appellant’s motion for review and affirmed all provisions of the CSM’s findings of fact, conclusions of law, and order. The district court found that the CSM’s decision was supported by the record and was not contrary to law. The district court stated that
the documents produced by [appellant] d[id] not provide adequate proof of his reduced income and expenses. Although Minnesota Statute § 518.551, subd. 5b(a), does not mandate the production of income tax returns in every case, the Child Support Magistrate was justified in requiring them in this case, given the size of the claimed decrease in income, the scanty supporting documentation, and the contentious history between the parties.
Imposition of Penal Provision for Contempt
Appellant’s child-support obligation has been adjusted several times. By the terms of a July 2001 order, appellant was ordered to pay monthly child support of $1,514 based on his net monthly income of $5,048.02. The district court adjusted appellant’s child support on November 1, 2001, ordering appellant to pay child support of $1,353.60 per month based on his net monthly income of $4,512.02. Appellant’s child-support payment was adjusted again on May 22, 2003, to $1,375.90 per month, based on his net monthly income of $4,583. The child-support amount was adjusted for the final time in June 2004 to $1,147 per month because of the emancipation of the parties’ older child.
On April 15, 2004,
[t]hat in the event [appellant] fail[ed] to meet promptly all the conditions herein provided for and upon the filing of a motion and an affidavit by the Public Authority, setting forth such default on the part of [appellant], a hearing shall be held to determine why the stay of execution ordered herein should not be revoked and vacated and the provisions of this Order executed.
In August 2005,
On December 13,
2005, the district court filed an order, finding that appellant had failed without
excuse to comply with the conditions for the stay of sentence, despite the fact
that appellant had the ability to pay the purge conditions. The district court ordered appellant to serve
180 days in the
Appellant challenges the district court’s denial of his motion for review of the CSM’s order. Specifically, appellant argues that the CSM erred when it determined that appellant had offered insufficient evidence of his claimed decrease in income. Appellant contends that he should not be required to produce copies of his income tax returns and other verification of his actual income and expenses.
a district court affirms a CSM’s ruling, the CSM’s ruling becomes the ruling of
the district court, and an appellate court reviews the district court’s decision. Kilpatrick
v. Kilpatrick, 673 N.W.2d 528, 530 n.2 (
from self employment is equal to gross receipts minus ordinary and necessary
expenses.” Minn. Stat. § 518.551, subd.
5b(f). The district court has broad
discretion to determine the income of a self-employed parent because “the
opportunity for a self-employed person to support himself yet report a
negligible net income is too well known to require exposition.”
The parties shall timely serve and file documentation of earnings and income. When there is a prehearing conference, the court must receive the documentation of income at least ten days prior to the prehearing conference. Documentation of earnings and income also includes, but is not limited to, pay stubs for the most recent three months, employer statements, or statement of receipts and expenses if self-employed. Documentation of earnings and income also includes copies of each parent’s most recent federal tax returns, including W-2 forms, 1099 forms, unemployment benefits statements, workers’ compensation statements, and all other documents evidencing income as received that provide verification of income over a longer period.
Here, appellant argues that his child-support obligation should be modified because of a substantial decrease in his net monthly income due to his failing business. In support of his first motion, appellant submitted a W-2 form and certificates of rent paid. But appellant did not provide any other verification of his alleged income and failed to produce his 2004 income tax returns, which he had not yet filed. In support of his second motion, appellant also submitted an income statement for 2004, but again failed to submit his tax returns. Further, when questioned, appellant did not know what his income for 2005 was and offered no information regarding his expenses.
that section 518.551, subdivision 5b(a), does not require the disclosure of his
tax returns and that by requiring such, the district court is “legislating law from
the bench.” In support of his position,
appellant cites Stephenson v. Stephenson,
Although the appellate court in both of those cases noted that tax returns and taxable income alone are not always an accurate indication of one’s income, the cases do not stand for the proposition that the district court can never require a party to prove net income by producing income tax returns, or, at the very least, simply decline to determine net income when a party will not volunteer such documents. To be sure, Minn. Stat. § 518.551, subd. 5b(a), states that a district court may consider a “parent’s most recent federal tax returns” when determining that parent’s income. Further, appellant, as the moving party, has the burden of proof in support-modification proceedings. Bormann, 644 N.W.2d at 481. This court has previously stated that
[o]n appeal, a party cannot complain about a district court’s failure to rule in her favor when one of the reasons it did not do so is because that party failed to provide the district court with the evidence that would allow the district court to fully address the question.
Eisenschenk v. Eisenschenk, 668 N.W.2d
235, 243 (Minn. App. 2003), review denied
argues that the district court did not make any findings or that the findings
that were made are insufficient or contradicted by the evidence provided. This court will not alter a finding of fact
regarding an obligor’s income for purposes of child support unless that finding
is clearly erroneous. Ludwigson v. Ludwigson, 642 N.W.2d 441,
detailed factual findings are required to demonstrate that the district court
considered the relevant statutory factors.
Tuthill v. Tuthill, 399 N.W.2d
230, 232 (
district court determined that appellant did not sufficiently demonstrate that
he suffered a decrease in earnings to render his child-support obligation
unreasonable and unfair. See
Appellant further challenges the district court’s order dated December 13, 2005, imposing stayed contempt sanctions. But appellant fails to set forth any specific reason or authority indicating why the district court’s revocation of the stay should be reversed.
reviewing a district court’s decision whether to hold a party in contempt, the
factual findings are subject to reversal only if clearly erroneous, while the
district court’s decision to invoke its contempt powers is subject to reversal
only for an abuse of discretion.
a contempt order is remedial and its purpose is to coerce compliance with an
existing order, it is civil in nature, rather than criminal.
are two types of civil contempt—direct and constructive.
are procedural requirements that a district court must follow before it may
hold an individual in constructive civil contempt.
[i]n cases of constructive contempt, an affidavit of the facts constituting the contempt shall be presented to the court . . . who may either issue a warrant of arrest to bring the person charged to answer or, . . . upon notice, or upon an order to show cause . . . may commit the person to jail, impose a fine, or both . . . .
“[w]hen the contempt consists in the omission to perform an act which is yet in
the power of the person to perform, the person may be imprisoned until the
person performs it . . . .”
(1) the court has jurisdiction over the subject matter and the person;
(2) a clear definition of the acts to be performed;
(3) notice of the acts to be performed and a reasonable time within which to comply;
(4) an application by the party seeking enforcement giving specific grounds for complaint;
(5) a hearing, after due notice, to give the nonperforming party an opportunity to show compliance or the reasons for failure;
(6) a formal determination by the court of failure to comply and, if so, whether conditional confinement will aid compliance;
(7) an opportunity for the nonperforming party to show inability to comply despite a good faith effort; and
(8) the contemnor’s ability to gain release through compliance or a good faith effort to comply.
Mower County, 551 N.W.2d at 223 (citing Hopp v. Hopp, 279
At th[is] point, the court may order confinement upon such terms and conditions as meet the Hopp requirements, including providing to the contemnor the opportunity to gain release through compliance or a good faith effort to comply. All the protective measures of Hopp will have been met and no additional hearing is thereafter required with respect to the then pending effort to enforce the support obligation.
551 N.W.2d at 224.
Appellant does not
articulate any grounds for reversal of the district court’s order. Because all of the procedures and factors set
 Appellant’s W-2 indicated wages of $30,000, rents of $11,755, and dividends of $25,353.
Stephenson, a husband appealed an
alimony award, arguing that the award exceeded one-half of his future earnings
and income and thus was in excess of that allowed by statute. 258
Otte, a husband challenged the
district court’s child-support award.
368 N.W.2d at 296. In reversing
the district court’s decision, the court of appeals noted that “taxable income
is not always a reliable indication of net income.”