This opinion will be unpublished and

may not be cited except as provided by

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




In Re the Marriage of:

Jean A. Einfeldt, petitioner,



John D. Einfeldt,


Filed June 24, 1997


Short, Judge

Ramsey County District Court

File No. DMF2943374

Carl E. Norberg, 700 St. Paul Building, 6 West Fifth Street, St. Paul, MN 55102 (for respondent)

Thomas R. Hughes, Hughes & Costello, 1230 Landmark Towers, 345 St. Peter Street, St. Paul, MN 55102 (for appellant)

Considered and decided by Short, Presiding Judge, Klaphake, Judge, and Schultz, Judge.[*]


SHORT, Judge

On appeal from a 1996 judgment and decree of dissolution, John D. Einfeldt argues the trial court abused its discretion in imposing a retroactive child support obligation and in calculating his income for the determination of guidelines child support. We affirm.


A trial court has broad discretion in deciding matters of child support, and we will uphold the trial court's decision absent an abuse of that discretion. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). This court must not set aside a trial court's factual findings unless clearly erroneous. Minn. R. Civ. P. 52.01; see Rouland v. Thorson, 542 N.W.2d 681, 685 (Minn. App. 1996) (upholding trial court's determination of net income if it has reasonable basis in fact).


Einfeldt argues the trial court erred in making his child support obligation retroactive to the date of the pretrial conference because his former spouse had not moved the court to modify support. We disagree. A trial court may retroactively modify child support only with respect to a period during which the party seeking a modification has a motion pending. Minn. Stat. § 518.64, subd. 2(c) (1996); Buntje v. Buntje, 511 N.W.2d 479, 481-82 (Minn. App. 1994). However, the trial court had placed the minor child in Einfeldt's custody and reserved the issue of child support in an order for temporary relief following the commencement of dissolution proceedings. See Minn. Stat. § 518.131, subd. 1(a), (c) (1996) (authorizing temporary orders providing for custody and support). The child later moved in with Einfeldt's former spouse with the consent of both parents and court services, but with no action by the court. Because there was no permanent support order in effect at the time of the judgment and decree, the trial court's award of retroactive child support did not constitute a modification of support and was not proscribed by Minn. Stat. § 518.64, subd. 2(c). See In re Support of J.M.K., 507 N.W.2d 459, 461 (Minn. App. 1993) (noting trial court could properly awarded retroactive support in final dissolution proceeding, taking into consideration all payments father had made since time of separation); see also Hill v. Hill, 356 N.W.2d 49, 58 (Minn. App. 1984) (permitting retroactive award of temporary child support), review denied (Minn. Feb. 19, 1985). Given that the parties' child had resided with Einfeldt's former spouse since long before the pretrial conference, we conclude the trial court's decision to make Einfeldt's support obligation retroactive to that date was not an abuse of discretion.


Einfeldt also argues the trial court abused its discretion by including his monthly social security disability benefits as income for the purpose of determining his guidelines child support obligation. However, an obligor's social security disability benefits may be considered as income in setting child support awards. Sward v. Sward, 410 N.W.2d 442, 444 (Minn. App. 1987), review granted (Minn. Sept. 30, 1987), appeal dismissed (Minn. Dec. 2, 1987); see Minn. Stat. § 518.54, subd. 6 (1996) (defining "income" as "any form of periodic payment to an individual including * * * disability payments"); see also Minn. Stat. § 518.551, subd. 5(b) (1996) (calculating guidelines support on basis of obligor's "net income"). Therefore, the trial court did not abuse its discretion by considering Einfeldt's social security disability benefits in determining his guidelines support.

Einfeldt further argues the trial court abused its discretion by failing to deduct expenses related to his rental property in determining his net income. A trial court may properly consider net income from rental property in calculating a noncustodial parent's child support obligation. See, e.g., Reynolds v. Reynolds, 498 N.W.2d 266, 273 (Minn. App. 1993) (affirming award of child support on basis of gross rental income less mortgage payments, taxes and insurance). However, when an obligor holds a given property primarily for the purpose of sheltering income, a trial court need not permit the deduction of claimed expenses in the determination of net income. See Preussner v. Timmer, 414 N.W.2d 577, 579-80 (Minn. App. 1987) (remanding for determination of whether obligor's claimed deductions were related to property retained for legitimate income-producing purposes).

The trial court permitted deductions for taxes and insurance in determining the net income derived from Einfeldt's rental properties. The court disallowed deductions for depreciation, legal fees, utilities, repair, painting, and certain other expenses, which the court found were "claimed in order to shelter income for tax purposes," but actually related to the maintenance of Einfeldt's own homestead. Cf. id. (permitting depreciation deductions if rental property is not held primarily for the purpose of sheltering income). Given the record and the deferential standard of review, we cannot say the trial court abused its discretion in determining Einfeldt's net income and corresponding guidelines child support.


[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.