This opinion will be unpublished and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

C0-96-840

State of Minnesota, By its Agent,

County of Anoka, on behalf of

Roberta J. Dahl,

Respondents,

vs.

Paul M. Gjerde,

Appellant.

Filed November 19, 1996

Affirmed

Lansing, Judge

Anoka County District Court

File No. F5955954

Robert M.A. Johnson, Anoka County Attorney, Janice M. Allen, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for Respondent County of Anoka)

Donald A. Wilcox, Eric H. Monson, 1150 Wisconsin Avenue, Box 100, Benson, MN 56215-100 (for Appellant)

Considered and decided by Lansing, Presiding Judge, Huspeni, Judge, and Norton, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

In an appeal from an order and judgment setting child support and reimbursement amounts, Paul Gjerde challenges the findings of an administrative law judge (ALJ) on Gjerde's income and resources. The record supports the valuation of in-kind payments and the inclusion of parental gifts, and we affirm. We also affirm the denial of Gjerde's postjudgment request for blood tests to establish paternity.

FACTS

Roberta Dahl gave birth to a daughter, M.D., on December 30, 1994. Between January 1 and March 31, 1995, Anoka County provided Dahl with $1,118 in Aid to Families with Dependent Children. Paul Gjerde signed a Recognition of Parentage form on March 9, 1995, in which he acknowledged that he was M.D.'s biological father. The county brought this action, in part, to obtain reimbursement from Gjerde for the public assistance payments made on M.D.'s behalf.

At the November 21, 1995 hearing to determine amounts for reimbursement and child support, Gjerde testified about the structure of his family's limited partnership for its farming business. Gjerde's parents are general partners, and Gjerde and his brother are limited partners in the partnership created in December 1993. At the time of its creation, the net value of the partnership was over $700,000. The partnership agreement has since been amended twice, in January 1994 and in January 1995; both times Gjerde's parents each gave 1.39% of their respective interests in the partnership to each of their two sons. In addition to these transfers, Gjerde claims to receive $186 per month in cash from the partnership. He also receives several in-kind payments from the partnership, but he did not produce any evidence at the November 1995 hearing of the value of those items.

Following the hearing the ALJ found Gjerde's net monthly income to be $2,170, concluded that Gjerde was able to pay $542.50 in child support per month, and ordered him to reimburse the county for the full amount of its AFDC expenditures to Dahl. The ALJ included the following amounts in the calculation of Gjerde's net monthly income: $186 in cash payments from the partnership; in-kind payments of $200 for food, $50 for motor vehicle insurance, $50 for automobile gasoline, $550 for housing and utilities, $50 for medical insurance, and $250 for motor vehicle expenses; and the $833 monthly value of his increased interest in the family partnership.

In support of a motion for reconsideration, Gjerde submitted: a letter from a realtor, who estimated the monthly rental value of Gjerde's home at $225; and a January 1996 affidavit from Gjerde's parents which stated that the transfers of their partnership interests to their son "were made at their discretion" and suggested values for the various in-kind payments that they made to Gjerde. Gjerde's motion also requested an order for the parties to submit to testing to establish Gjerde's paternity. The ALJ denied Gjerde's motion, and Gjerde now appeals.

D E C I S I O N

The district court has broad discretion to determine child support and will be reversed only when there is no evidentiary or logical justification for the determination. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). The same standard of review applies for appeals from the child support decision of an ALJ. See Minn Stat. § 518.5511, subd. 4(h) (Supp. 1995) ("The decision and order of the administrative law judge is appealable to the court of appeals in the same manner as a decision of the district court."). The findings of fact in a child support proceeding will not be overturned unless they are clearly erroneous. Minn. R. Civ. P. 52.01; Rutten, 347 N.W.2d at 50.

Gjerde claims that the ALJ made clearly erroneous findings relating to (1) the value of in-kind payments that he receives from his family's farm partnership as compensation for his work, and (2) the regularity of gifts that he receives from his parents in the form of an increased interest in the partnership. He also argues that the ALJ erred by not granting his postjudgment request for blood tests to establish paternity.

I

A parent's net income, for the purpose of determining ability to pay child support, includes: "in-kind payments received by the obligor in the course of employment, self-employment, or operation of a business if the payments reduce the obligor's living expenses." Minn. Stat. § 518.551, subd. 5(b)(1) (Supp. 1995).

It is undisputed that Gjerde receives in-kind payments from his family's farm partnership as remuneration for his employment. Although neither Gjerde nor the county presented evidence of the actual value of these payments at the hearing before the ALJ, the county proposed estimated values for each of the categories of in-kind payments that Gjerde receives. The ALJ's valuations deviated only slightly from the county's estimates.

As early as August 8, 1995, the ALJ ordered Gjerde to disclose a variety of financial information, including "any * * * document evidencing a payment from partnership to obligor." Yet at the time of the November 21, 1995 hearing, Gjerde had provided no formal documentation of the in-kind payments that the partnership made on his behalf. An obligor's failure to comply with an order to disclose financial information precludes him from later complaining of error in the calculation of his net income, and justifies inferences that are adverse to him. Solon v. Solon, 255 N.W.2d 395, 396 (Minn. 1977); County of Isanti v. Formhals, 358 N.W.2d 703, 706-07 (Minn. App. 1984). In view of Gjerde's limited financial disclosure, we conclude that the ALJ's findings relating to the value of Gjerde's in-kind payments are not clearly erroneous.

Following the ALJ's December 22, 1995 order for judgment, Gjerde submitted a letter from a realtor estimating the rental value of Gjerde's home and an affidavit from Gjerde's parents. Overall, the realtor's and Gjerde's parents' estimates of the partnership's in-kind payments were lower than the ALJ's valuations. Based on these estimates, Gjerde moved for amended findings or, in the alternative, a new hearing. A court may amend findings under Minn. R. Civ. P. 52.02 "on the files, exhibits, and minutes of the court." Because Gjerde's request for amended findings was based on evidence not in the record at the time of the original hearing, the ALJ properly denied the request.

On a motion for a new hearing following a bench trial, the court may consider additional evidence. Minn. R. Civ. P. 59.01. But the grounds for a new hearing are limited. Gjerde's ostensible basis for requesting a new hearing was the alleged existence of "[m]aterial evidence newly discovered, which with reasonable diligence could not have been found and produced at trial." Minn. R. Civ. P. 59.01(d). The evidence that Gjerde presented in support of his motion could likely have been obtained with reasonable diligence in advance of the November 21, 1995 hearing. In particular he should have been able to obtain an affidavit from his parents, who are Gjerde's business partners and who eat meals with him on a daily basis. Under these circumstances we conclude that it was within the ALJ's discretion to deny Gjerde's request for a new hearing.

II

Gjerde next challenges the consideration of his increased interest in the family partnership as a resource to be used in determining his child support obligation. The ALJ found that "each year [Gjerde] receives a $10,000.00 interest in the limited partnership." Gjerde characterizes this amount as a "gift" and claims that the facts do not support its inclusion in his net income.

A gift may be included in an obligor's net income if it is "regularly received from a dependable source." Barnier v. Wells, 476 N.W.2d 795, 797 (Minn. App. 1991). The record demonstrates that in January 1994, and again in January 1995, Gjerde's parents each transferred to him a 1.39% interest in the partnership.[1] Gjerde's testimony at the November 21, 1995 hearing indicated that his parents conveyed their interests in this manner so that they could gradually transfer the ownership of the partnership to their sons in a way that would minimize any gift tax consequences from the transfers.

Only after the ALJ's order for the entry of judgment did Gjerde submit an affidavit from his parents, stating that they gave Gjerde a percentage of their respective interests in the partnership "at their discretion." This affidavit was not newly discovered evidence that could not have been found with reasonable diligence before the November 21, 1995 hearing, and thus did not entitle Gjerde to a new hearing under Minn. R. Civ. P. 59.01(d).

Even if the ALJ should have considered the parents' affidavit at a new hearing, we note that the affidavit stated that the transfers were made "for purposes of [the parents'] own estate planning." Gjerde himself currently owns 15.82076% of the partnership and states in his appellate brief that "he expects to someday be the owner of a large percentage of the partnership." These statements, along with the January 1994 and 1995 transfers of an identical percentage of an interest in the partnership, suggest that the gifts of a similar amount are likely to continue on a regular basis over the long term. We conclude that the ALJ properly considered Gjerde's increased interest in the partnership as a resource for the purpose of setting his child support obligation.

III

In the order denying Gjerde's motion for reconsideration, the ALJ amended one finding of fact. Although the ALJ retained an earlier finding regarding Gjerde's net monthly income being $2,170 per month, the amendment stated that Gjerde voluntarily chose to work on the family farm, to defer income, and to receive part of his income in-kind. The ALJ also found that Gjerde was "capable of obtaining full-time employment and earning net monthly cash income in the amount of $2,170.00." Gjerde argues that there is insufficient evidence in support of this finding. See Minn. R. Civ. P. 59.01(g) (stating that new trial may be granted where decision "is not justified by the evidence").

The ALJ's amended finding regarding Gjerde's earning capacity provided an independent rationale for calculating his child support obligation. It is not necessary for us to determine whether this finding is supported by the record, because we find adequate support for the ALJ's alternative rationale for concluding that Gjerde's net monthly income is $2,170: his cash and in-kind payments from his family partnership and his increased interest in the partnership provide him with an income of that amount.

IV

Finally, in his motion for reconsideration, Gjerde requested that the ALJ order the parties to submit to blood tests to establish his paternity, although Gjerde had not previously contested his paternity. The ALJ did not explicitly address Gjerde's request in the order denying his motion.

On March 9, 1995, several months before the ALJ's hearing, Gjerde signed a recognition of parentage form. Revocation of the recognition must occur within thirty days after the recognition is executed. Minn. Stat. § 257.75, subd. 2 (1994). Gjerde did not attempt to revoke his recognition within the requisite thirty-day period.

A recognition of parentage "has the force and effect of a judgment or order determining the existence of the parent and child relationship." Minn. Stat. § 257.75, subd. 3 (1994). A judgment determining the existence of a parent and child relationship generally precludes subsequent challenges to that determination. See State ex rel. Ondracek v. Blohm, 363 N.W.2d 113, 115 (Minn. App. 1985) (holding that doctrine of res judicata barred assertion of nonpaternity following affirmative finding of paternity in judgment and decree of dissolution). A person who has signed a recognition of parentage form may, however, bring an action in the district court to vacate the recognition within a year of its execution or within six months after discovery of evidence in support of the action. Minn. Stat. § 257.75, subd. 4 (1994). Gjerde has not alleged the discovery of any evidence that would support his claim of nonpaternity.

Moreover, Gjerde has not made his request for blood tests as part of an action to vacate the recognition in the district court. Rather, he requested an order for tests from the ALJ, whose authority in child support enforcement proceedings is limited by Minn. Stat. § 518.5511 (1994). The administrative proceedings, "[a]t county option, * * * may include * * * actions to establish parentage," but not actions to vacate a recognition of parentage at a recognized parent's request. Minn. Stat. § 518.5511, subd. 1(b). In view of the ALJ's limited authority in these proceedings, it would not have been proper for the ALJ to have granted Gjerde's request for blood tests.

Affirmed.

[ ]1 The net value of the partnership was over $700,000 at the time of each of the transfers, so that the value of Gjerde's increased interest in the partnership was approximately $10,000 from each parent per year.