This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Lori Beth Tate, petitioner,
Bobby Dean Tate,
Filed August 20, 1996
Hennepin County District Court
File No. 181932
Lori Beth Tate, 2700 Bryant Avenue South, Minneapolis, MN 55408 (Pro Se Respondent)
Bobby Dean Tate, 5133 Townsend Avenue, Los Angeles, CA 90041 (Pro Se Appellant)
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
This is a consolidated appeal of district court orders denying motions to reduce child support arrears and the underlying obligation, to obtain an extension of time to file a memorandum supporting district court review of a referee's order, and to modify visitation. Because the district court did not abuse its discretion in denying the motions, we affirm.
The district court affirmed a referee's August 1995 order determining Bobby Tate's support arrears to be $12,037. The court calculated the arrears based on the support obligation stated in the Tates' 1992 dissolution judgment. Bobby Tate asserts that the amounts are incorrect because the 1992 judgment erroneously set his support obligation.
After the time to appeal has expired, a district court's ruling is final. See Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966) ("Even though the decision of the trial court in the first order may have been wrong, if it is an appealable order it is still final after the time for appeal has expired."). The time to appeal the parties' 1992 dissolution judgment has expired. See Minn. R. Civ. App. P. 104.04 (dissolution judgments may be appealed within ninety days after entry). Because Bobby Tate did not previously appeal the dissolution judgment, the district court properly used the support obligation in the dissolution judgment to set arrears.
A support obligation may be retroactively modified if the district court finds, among other things, that the moving party promptly served a modification motion after an inability to do so. Minn. Stat. § 518.64, subd. 2(c) (Supp. 1995). Bobby Tate did not move to modify support until 1995 even though he was not precluded from doing so when the judgment was entered in 1992. Because he did not promptly seek a modification, the district court did not abuse its discretion by refusing to modify support retroactively.
A district court may dismiss review of a referee's order if a party does not file a memorandum supporting the review within ten days of the date the court administrator mails a notice of assignment of the review. Minn. R. Gen. Prac. 312.01.
Bobby Tate sought district court review of the referee's January 1996 order denying his motions to change visitation from Minnesota to California and to reduce support because of his recent unemployment. In February 1996 Bobby Tate sought an extension of time to file a memorandum supporting the review of the referee's January 1996 order. The district court denied the extension request and dismissed the review.
The district court may extend deadlines for filing a memorandum, but extensions are discretionary even when good cause has been shown. See Minn. R. Civ. P. 6.02 (court may extend time within which an act must be done "for cause shown"); Minn. R. Gen. Prac. 301 (when applicable the rules of civil procedure apply to family court proceedings). We find no basis for holding that the court abused its discretion in its Februaryorder denying extension and dismissing the review petition. See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (appellate courts cannot assume district court error). Bobby Tate disputes the district court's factual findings and asserts that he did not receive the order until "almost ten days from the date of mailing." Even accepting this assertion, more than ten days elapsed between his acknowledged receipt and the court's dismissal. Under these circumstances we cannot say that the district court abused its discretion.
The district court's dismissal of the review petition on the support and visitation rulings does not preclude appellate review, but limits the scope to whether the evidence sustains the findings of fact and whether the findings support the conclusions of law and the judgment. See Warner v. Warner, 391 N.W.2d 870, 873 (Minn. App. 1986) (citing Greunhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976)). Our review is further limited by Bobby Tate's failure to provide a transcript of the hearing before the referee. See Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn.App. 1995) (absent a transcript appellate review "is limited to whether the trial court's conclusions of law are supported by the findings").
Whether to modify support is discretionary with the court and requires a showing of substantially changed circumstances making the current support order unreasonable and unfair. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (citing Minn. Stat. §subd.(1984)). The moving party has the burden of proof. Johnson v. Johnson, 304 Minn. 583, 584, 232 N.W.2d 204, 205 (1975). By not reducing Bobby Tate's support obligation despite Bobby Tate's unemployment, the referee imputed to Bobby Tate the income he had when he was working. Imputing income to a support obligor is proper if an obligor is "voluntarily unemployed." Minn. Stat. § 518.551, subd. 5b(d) (1994). A support obligor is not voluntarily unemployed if he shows the unemployment is temporary and will lead to increased income or is a "bona fide career change" outweighing any adverse impact on the child. Id.
The imputation of income is supported by the findings. The referee found insufficient information to determine whether Bobby Tate's "interest" in going back to school was "a bona fide career change." Also, the referee did not find, and Bobby Tate does not claim, that his unemployment is either temporary or that it will lead to a greater income in the future. Further, the imputation of income is consistent with a ruling by the California Employment Development Department (CEDD) stating that California had denied Bobby Tate unemployment benefits because Bobby Tate voluntarily quit his job. While Bobby Tate claims that the CEDD ruling is incorrect, the referee noted the ruling had not been reversed.
The court "shall" modify visitation rights "whenever modification would serve the best interests of the child." Minn. Stat. § 518.175, subd. 5 (1994). On appeal, visitation rulings are not reversed absent a clear abuse of discretion. Hennessy v. Stelton, 302 Minn. 550, 550, 224 N.W.2d 926, 927 (1974). The referee's findings are sufficient to allow the conclusion that the child's best interests would not be served by changing visitation from Minnesota to California. The referee found that the child, then aged eight, has not been to Bobby Tate's home in California and has never flown alone, that Bobby Tate has not sought visitation with the child in Minnesota, and that the child should establish a relationship with Bobby Tate through visitation in Minnesota before flying to California.
Lori Tate moves to strike Bobby Tate's reply brief claiming that it raises issues beyond the scope of the appeal. A reply brief "must be confined to new matter raised in the brief of the respondent." Minn. R. Civ. App P. 128.02, subd. 3. The extra-record information was not considered in our review. See Minn. R. Civ. App. P. 110.01 (record on appeal is "[t]he papers filed in the trial court, the exhibits, and the transcript * * * if any").