This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Todd Michael Bauerly,
Suzanne Mary Bauerly,
Affirmed in part, reversed in part, and remanded;
Motion granted in part.
Wright County District Court
File No. 86F904002633
Alan J. Albrecht,
Daniel J. Goldberg, Messerli & Kramer, P.A., 1800 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Dietzen, Judge.
In this dissolution action, appellant-husband challenges the district court’s award of sole physical custody of the minor children to respondent-wife; calculation of his net monthly income for purposes of setting child support; failure to continue the trial for completion of psychological evaluations; denial of his request for credit for alleged overpayment of child support; and adoption of wife’s proposed findings of fact, conclusions of law, and order for judgment. Because the record reflects that the district court independently decided the issues, the district court’s findings, though minimal, support the award of custody, husband’s claim for overpayment of support was not established on the record, and the district court did not abuse its discretion in denying a continuance for psychological evaluations, we affirm on those issues. Because the district court did not calculate husband’s net monthly income based on information that was current at the time of trial, we reverse and remand on that issue.
The ten-year marriage of appellant, Todd Michael Bauerly (husband), and respondent, Suzanne Mary Bauerly (wife), ended with a dissolution decree entered after a two-day trial. The judgment awarded sole physical custody of the parties’ two children to wife; calculated husband’s net monthly income to be $5,015, based on a payroll check dated six months before the trial; calculated guideline child support to be $1,505; awarded maintenance to wife in the amount of $800 per month for 13 months; and awarded wife $40,000 of husband’s approximately $98,000 401(k) plan, purportedly invading more than 50% of husband’s nonmarital share of the plan.
Husband moved for amended findings of fact and conclusions of law and judgment. The district court granted some of husband’s proposed amendments but did not amend the award of custody, child support, or maintenance, or the division of the 401(k). Husband appealed, but ordered only a portion of the trial transcript for this court’s review. Wife moved to limit the scope of review based on husband’s failure to provide a complete transcript and that motion was deferred to the panel considering the merits of the appeal.
I. Adoption of wife’s proposed findings of fact and conclusions of law
We first address husband’s
allegation that the district court erred in adopting verbatim wife’s proposed
findings of fact and conclusions of law.
“A district court’s verbatim adoption of a party’s proposed findings and
conclusions of law is not reversible error per se.” Schallinger
v. Schallinger, 699 N.W.2d 15, 23 (Minn. App. 2005), review denied (
Although not contained in the record, the parties agree that after the trial, the district court told counsel that it was awarding physical custody to wife and outlined other conclusions of law in a chambers conference. The district court also asked wife’s attorney to draft proposed findings of fact based on the record and conclusions of law based on the discussion, to be approved by husband’s counsel before submission to the district court. Husband did not agree with wife’s draft, and therefore, submitted his own proposed findings of fact and conclusions of law, accompanied by written argument supporting his proposal. Wife then submitted her proposal, accompanied by a supporting letter. The district court adopted much of wife’s proposal, but revised portions of wife’s proposal consistent with husband’s arguments. The district court altered wife’s proposed order by removing from proposed finding # 9: “Petitioner’s discipline of the children has at times been excessive.” The district court also removed language reserving wife’s request to move the children’s residence from wife’s proposed finding #11. In finding #15, the district court modified the amount of wife’s expected income consistent with husband’s objection to the amount stated in wife’s proposal. Additionally, wife’s proposed conclusions of law were changed to reflect the holiday parenting schedule set out in husband’s proposal. The district court’s alteration of wife’s proposal based on husband’s proposal and arguments, coupled with the district court’s later amendments based on husband’s post-trial motion for amended findings, demonstrates that the district court independently considered the issues in this case and intentionally adopted findings proposed by each party. Insofar as the findings are sufficient to support the conclusions of law, we decline to reverse merely because the district court adopted much of wife’s proposal.
II. Scope of review
bears the burden to provide an adequate record.
Mesenbourg v. Mesenbourg, 538 N.W.2d
489, 494 (
Husband conceded at oral argument that our scope of review in this case is primarily limited to whether the district court’s findings of fact support its conclusions of law, therefore, wife’s motion to limit our scope of review is moot. With regard to the calculation of husband’s net monthly income, however, for which there is sufficient evidence in the record before us for meaningful review, our scope of review is not so limited. Wife’s motion to limit the scope of review is therefore granted in part.
Husband challenges the award of sole
physical custody to wife and the sufficiency of the findings to support that
award. The district court has broad
discretion to award custody. Schallinger, 699 N.W.2d at 18-19. In this case, because we are not reviewing
the sufficiency of the evidence to support the district court’s findings, we
review the custody award to determine whether the district court improperly
applied the law. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (
In making a custody determination,
the district court must consider the 13 statutory factors enumerated in Minn. Stat.
§ 518.17, subd. 1(a) (2006). It “may not
use one factor to the exclusion of all others.”
Husband agrees that the district court’s findings “touched on” most of the statutory factors but argues that “given the lack of specificity, there is no way to review the record and determine whether the evidence supports the determination of the court.” Husband goes on to argue that the evidence does not support the findings. But that argument is beyond the scope of review in this appeal. We note that the record indicates both parents are caring and capable, and although we do not condone the district court’s minimal custody findings, we are satisfied that the court considered each of the relevant statutory factors in reaching its decision. Given the limited scope of review in this matter, we cannot say that the district court’s findings do not support its conclusion to award sole physical custody to wife.
IV. Determination of husband’s net income
Husband argues that the district court should have based the calculation of his net monthly income on the most current evidence of his income, which, in this case, was a pay stub dated approximately two weeks before the trial. That pay stub, on its face, indicates that it is the first pay check issued after husband changed his marital status from “married” to “single” and after husband reduced his federal exemptions from ten to three. The earlier pay stub used by the district court to calculate husband’s net monthly income showed federal and state-tax withholdings based on M-10, making husband’s resulting take-home pay of $842 per month higher than his net income based on withholding based on S-3.
“The court must determine current net income for purposes of
setting child support.” Thomas v. Thomas, 407 N.W.2d 124, 127 (
V. Denial of continuance for psychological evaluations
argues that the district court erred by failing to order a continuance or hold
the record open to allow a psychological evaluation of respondent to be
admitted into evidence. “The granting of
a continuance is a matter within the discretion of the [district] court and its
ruling will not be reversed absent a showing of clear abuse of
discretion.” Dunshee v. Douglas, 255 N.W.2d 42, 45 (
Although husband argues that there
is psychological information regarding wife that would be applicable to the
issues of custody and maintenance, he does not present any authority to support
his apparent argument that he was prejudiced by this lack of evidence or that
he is entitled to any particular relief on this issue. This court declines to address allegations
unsupported by legal analysis or citation.
VI. Denial of credit for in-kind support payments
Husband relies on “Exhibit 3” to
argue that he should have been given credit for in-kind support paid to wife
and children before the time income withholding took effect for temporary-support
payments. But wife argues, and the
district court’s evidence log confirms, that Exhibit 3 was not admitted into
Affirmed in part, reversed in part, and remanded; motion granted in part.
 At oral argument, husband commendably informed the court that he considers the maintenance and property-division issues moot and withdrawn from the consideration of this court because the funds have been disbursed to wife and are no longer in existence, precluding any realistic remedy. We appreciate husband’s candor.
 Husband’s proposed order was not in the district court file that was forwarded to this court. On inquiry to the district court, wife’s and husband’s proposed orders and cover letters for those documents were provided, although husband’s proposal, which ends at page 16, does not appear to be complete.
 We caution the use of pay stubs alone to determine net monthly income because monthly withholdings are subject to manipulation and may not reflect true tax liability.
 There was passing mention at the oral argument on appeal that husband’s employment has changed since the judgment was entered. That information is not in the record, however, we recognize that a determination of income and the child-support obligation at the time of the dissolution may impact later motions for modification.
 In his brief, husband cites Minn. Stat. § 518.642, which has been renumbered as Minn. Stat. § 518A.52 (2006).