This opinion will be unpublished and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
Filed September 24, 1996
Ramsey County District Court
File No. F2952235
Mustafa Abdu, 1627 S. Sixth St. #87, Minneapolis, MN 55454 (Pro se Appellant)
Susan Gaertner, Ramsey County Attorney, Richard H. Hoffman, Assistant Ramsey County Attorney, Elisa C. Thiel, Certified Student Attorney, 50 W. Kellogg Blvd., Suite 560, St. Paul, MN 55102 (for Respondent)
Considered and decided by Davies, Presiding Judge, Klaphake, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant-father claims that he did not receive notice of an administrative hearing and that the ALJ erred by (1) granting the county a judgment against him for child support and reimbursement of public assistance and (2) by denying his motion for "reconsideration." We affirm.
Father Mustafa Abdu, who appeals pro se, and respondent-mother Zahabiya Kalil were married in April 1992 and had a child in July 1993. After separating later that year, mother retained custody of the child and received public assistance. In 1995, father petitioned to dissolve the marriage. Respondent Ramsey County then started an administrative proceeding against father for child support and reimbursement of funds it had provided to mother and the child.
Father did not appear at a February 1996 administrative hearing in the reimbursement action at which the ALJ: (a) set father's monthly support obligation at the guideline amount of $107.29, making an assumption that he could work full time at the minimum wage; (b) awarded the county a judgment against him for $4,513.76 in past support and confinement costs; and (c) required him to reimburse the county for this amount at a rate of $21.45 per month. Father appeals an order denying his motion for "reconsideration."
D E C I S I O N
Functionally, the ALJ's denial of reconsideration was a denial of father's request for relief from a default judgment. Whether to grant relief from a default judgment is discretionary with the district court. Foerster v. Folland, 498 N.W.2d 459, 460 (Minn. 1993). In deciding whether to vacate a default judgment, a district court considers whether the defaulting party: (a) has a "reasonable defense on the merits"; (b) has a "reasonable excuse" for not answering; (c) "has acted with due diligence after notice of the entry of judgment"; and (d)shown that "no substantial prejudice will result to the other party" upon reopening of the action. Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30, 53 N.W.2d 454, 455-56 (1952).
Our review of the ALJ's "reconsideration" decision is seriously handicapped because father did not provide a transcript of the hearing on his motion. See Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995) (if appellant fails to provide a transcript, appellate court's review is "limited to whether the trial court's conclusions of law are supported by the findings"); see also Truesdale v. Friedman, 267 Minn. 402, 404, 127 N.W.2d 277, 279 (1964) ("party seeking review has the duty to see that the appellate court is presented with a record which is sufficient to show the alleged errors and all matters necessary for consideration of the questions presented").
1. As an excuse for not contesting the matter originally, father claims that his failure to attend the hearing was "reasonable" because he was not served with notice of the hearing. To oppose this assertion, a child support agent sent the ALJ a letter stating that she mailed notice of the hearing to father on January 19, 1996, and that the notice was not returned to the county as undeliverable. The "Misc. unfiled papers" in the district court file contains a copy of a notice of the hearing that is correctly addressed (although it lacks an affidavit of service).
In the order denying father's motion for reconsideration, the ALJ specifically found that "[n]otice of the contested hearing was mailed to [father] * * * on or about January 19, 1996." This constitutes a finding that the notice was served on father. See Minn. R. Civ. P. 5.02 (service may be made by mail to the party's last known address and "is complete upon mailing"); Kelley v. Moe, 387 N.W.2d 664, 668 (Minn. App. 1986) (stating, in the context of service by mail, that "once a letter is properly mailed, the risk of nondelivery is on the addressee"). On this record, we must reject father's claim that he was not served with notice of the contested administrative hearing.
2. Regarding the merits, father claims that he lived with and supported mother and the child until February 1996 and during that time did not know mother was receiving public assistance. Therefore, he argues, he should not have to reimburse the county for the assistance. Again, because we lack a transcript, we cannot review the ALJ's contrary finding that the parties separated in December 1993.
Also on the merits, father claims that his English language skills are too poor to allow him to work full time at a job paying the minimum wage. This, he claims, negates the assumption the ALJ made when she imputed to him a gross monthly income of $736.10 ($8,833.20 annually). Lacking a complete record, we have no basis upon which to evaluate this claim. Furthermore, the ALJ, in her order denying reconsideration, did not specifically address father's alleged inability to understand English, and the record before us does not show that father specifically made this claim in his motion for "reconsideration." If father made the claim at the hearing of his motion, the ALJ apparently did not believe father and we defer to that ruling. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to district court credibility determinations). Alternatively, if father did not present the argument to the ALJ, he is raising the claim for the first time on appeal and we therefore need not address it. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (generally, appellate courts only address issues presented to and decided by district court).
Citing an exhibit allegedly containing his 1994 tax returns and another exhibit addressing his 1995 income, father claims that his gross incomes for 1994 and 1995 were $5,567.54 and $5,237, respectively. The cited exhibits are not in the record before this court and we cannot base our decision on them. See id. at 582-83 ("[a]n appellate court may not base its decision on matters outside the record on appeal").
3. On this record, father presents neither a reasonable excuse for not appearing nor a reasonable defense on the merits. That is enough to conclude that it was not an abuse of discretion for the ALJ to refuse to vacate the default judgment. We need not address whether father acted diligently in seeking relief from the default judgment or whether vacating the judgment would prejudice the county. See Wiethoff v. Williams, 413 N.W.2d 533, 536 (Minn. App. 1987) ("[a]lthough one weak [Hinz] factor may be overcome by three strong factors, there is no authority by which we can conclude that two weak factors are overcome by two strong factors").
Finally, we note that our ruling does not preclude father from moving to reduce prospectively his support obligation under Minn. Stat. §(1994 & Supp. 1995).