This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re the Matter of:

Merodie Lynn Warren, petitioner,



Paul Daniel Ruffle,


Filed February 18, 1997

Affirmed in part, reversed in part, and remanded

Toussaint, Chief Judge

Hennepin County District Court

File No. PA10967

Jane Binder, Christine N. Howard, Jill A. Poppe, M. Sue Wilson Law Offices, P.A., 1140 Metropolitan Centre, 333 South Seventh St., Minneapolis, MN 55402 (for appellant)

Gretchen S. Schellhas, Robert D. Lucas, Rode, Lucas & Schellhas, PLLP, Edinborough Corporate Center, 3300 Edinborough Way, Suite 508, Minneapolis, MN 55435 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Toussaint, Chief Judge, and Lansing, Judge.


TOUSSAINT, Chief Judge

On appeal from an order modifying child support, appellant Merodie Lynn Warren claims the district court erred by (1) adopting proposed findings of respondent Paul Daniel Ruffle, (2) understating Ruffle's income, (3) not allocating the child's unreimbursed medical expenses between the parties, (4) not ordering Ruffle to verify he had named the child as beneficiary of a life insurance policy, and (5) not requiring Ruffle to answer discovery. Ruffle asks this court to strike part of Warren's brief. The district court did not abuse its discretion by adopting Ruffle's proposed findings or refusing to order Ruffle to respond to Warren's discovery requests and we affirm on these issues. Because the district court's calculation of Ruffle's income lacks a reasonable basis in fact and because the district court failed to consider the allocation of the child's unreimbursed medical expenses and the verification of the beneficiary designation, we reverse and remand on these issues. We decline to strike the challenged portion of Warren's brief.


1. A district court's adoption of a party's proposed findings and conclusions is not reversible error per se, but it raises the question of whether the district court independently evaluated the testimony and evidence. Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). While Warren correctly notes the district court misidentified her counsel, she demonstrates no prejudice caused by this error. We decline to remand solely on this issue. See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (to obtain relief on appeal, a party must show error and that the error caused prejudice).

2. The district court has broad discretion to provide for the support of children and will not be ruled to have abused its discretion absent a clearly erroneous conclusion that is against logic and the facts on record. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Citing Minn. Stat. § 518.551, subd. 5(b) (1996) which allows "Reasonable Pension Deductions" when calculating a support obligor's net monthly income, Warren claims the district court erred by allowing Ruffle a 10% "savings contribution" when calculating net monthly income. A finding of net monthly income for support purposes will not be reversed if it has a reasonable basis in fact. Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987). Here, Ruffle intended to use the "savings contribution" to build a retirement account but stated he might borrow against the account to pay the child's college expenses. Warren presents no compelling reason to distinguish a "savings contribution" for a "retirement account" from a "pension deduction" under Minn. Stat. § 518.551, subd. 5(b). Indeed, if the retirement account is used for the child's college education, the child will receive the benefit of those funds. On this record, we cannot say the allowance of a "savings deduction" was a clear abuse of the district court's broad discretion.

Warren claims that if a "savings contribution" is allowed, a 10% deduction is excessive.[1] Because the record lacks evidence that Ruffle contributed 10% of his gross income to his retirement account between October 1995 and June 1996, when his support arrears accrued, the district court's allowance of a 10% "savings contribution" for that period lacks the reasonable basis in fact required by Strauch. We reverse and remand for the district court to find a reasonable "saving contribution" for this period. Because the district court found the Ruffle's ability to save on a pre-tax basis as of July 1996, made a 10% "savings contribution" thereafter reasonable, we affirm the allowance of a 10% "savings contribution" after June 1996.

Warren correctly claims the calculation of Ruffle's net monthly income should have included Ruffle's tax refund and interest and dividend income. See Dinwiddie v. Dinwiddie, 379 N.W.2d 227, 229-30 (Minn. App. 1985) (income includes any form of periodic payment, including tax refunds). Warren also claims the district court's calculation of Ruffle's gross monthly income underestimates Ruffle's income because it estimated his monthly income by multiplying Ruffle's biweekly paystub amount by 2.15 instead of calculating his actual monthly income by multiplying the biweekly amount by 26 and dividing by 12. Ruffle claims any error in omitting his tax refund and interest and dividend payments is harmless because he was unemployed in 1995 and because his support obligation is equitable in nature. See Minn. R. Civ. P. 61 (harmless error to be ignored). An error is not harmless if it changes the result or causes substantial prejudice to the rights of the complaining party. Miller v. Hughes, 259 Minn. 53, 59-60, 105 N.W.2d 693, 699 (1960). Here, we cannot say the cumulative effect of the amounts omitted from the calculation of Ruffle's income is harmless to the parties' child and we remand for the district court to recalculate Ruffle's income and make any necessary adjustments in his support obligation and the amount of his arrears.[2]

3. Warren notes the district court did not allocate between the parties the, child's unreimbursed medical expenses. On remand, the district court shall address the child's unreimbursed medical expenses. Minn. Stat. § 518.171, subd. 1(a) (1996).

4. Similarly, because the district court did not address Warren's request that Ruffle verify that he named the child as beneficiary of his life insurance policy as required by an April 1984 order, we also remand this issue.

5. Warren argues the district court should have ordered Ruffle to respond to Warren's request for discovery. A district court's discovery ruling is discretionary and will not be set aside absent an abuse of discretion. Kahn v. Tronneir, 547 N.W.2d 425, 431 (Minn. App. 1996). Ruffle argues he submitted copies of the pertinent financial documents, this evidence allowed the district court to set support, and the district court found Warren's discovery requests untimely. Warren presents no evidence that Ruffle has not disclosed all of his income. Under these circumstances, the district court's refusal to require Ruffle to answer Warren's untimely discovery requests was not an abuse of discretion.

6. Ruffle argues that part of Warren's brief should be struck and that Warren should be assessed attorney fees because Warren's brief incorrectly states that "[i]n 1989, Child Protection found that [Ruffle] mistreated [the child]." This statement is not false -- child protection did find this. The district court, however, later found that Warren "had failed to substantiate * * * any physical or sexual abuse" of the child by Ruffle. Because the contested statement is not false, striking it from Warren's brief and awarding Ruffle attorney fees would be inappropriate. See Minn. Stat. § 518.14, subd. 1 (1996) (allowing award of attorney fees based on a party's conduct).

7. On remand, the district court shall have discretion regarding whether to reopen the record. Nothing in this opinion is an expression of this court's opinion of how to decide the remanded issues.

Affirmed in part, reversed in part, and remanded.

[ ]1Warren cites unpublished cases to support her claims that a 10% "savings contribution" is excessive. We decline to rely on such authority. "[T]he danger of mis-citation [of unpublished opinions] is great" and "[t]he legislature has unequivocally provided that unpublished opinions are not precedential." Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800-01 (Minn. App. 1993).

[ ]2The child support guidelines are presumptively applicable in all support modification proceedings. See Minn. Stat. § 518.64, subd. 2(b)(1) (1996) (in support modification proceedings, district court shall apply Minn. Stat. § 518.551, subd. 5); § 518.551, subd. 5(i) (1996) (support guidelines are rebuttably presumed to be applicable in all support modification proceedings). Under the guidelines, a support obligation is a function of the obligor's net monthly income and the number of children being supported. Minn. Stat. § 518.551, subd. 5(b) (1996). Here, because we are remanding for the district court to recalculate Ruffle's net monthly income, we need not address the parties' dispute about the amount of Ruffle's support obligation.