may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re the Marriage of:
Mari Ruth Babin,
n/k/a/ Mari Ruth Arnette, petitioner,
Scott Frederick Babin,
Filed July 8, 1997
Affirmed as modified
Scott County District Court
File No. 8412112
Rachel B. Rosen, 5001 West 80th St., Suite 745, Bloomington, MN, 55437 (for Appellant)
Anne Heimkes Tuttle, 206 Scott St., Shakopee, MN 55379 (for Respondent)
Considered and decided by Crippen, Presiding Judge, Willis, Judge and Schultz, Judge.[*]
Appellant Scott Babin disputes an order retroactively modifying his child support obligation and requiring him to contribute to the unreimbursed medical and dental expenses for his child. Appellant argues that the administrative law judge erred in calculating his income and contends that the record does not establish cause for the retroactive modification. Except for modifications on the effective date for relief granted by the administrative judge, we affirm.
Respondent sought another increase in child support in 1995. Based on income data supplied by the Internal Revenue Service, the administrative law judge modified appellant's child support obligation, retroactive to January 1, 1991, and ordered him to contribute 50% of the costs of unreimbursed medical and dental expenses for his child.
Minn. Stat. § 518.64 currently states a presumption that a substantial change in circumstances has occurred and a rebuttable presumption that the current support order is unreasonable and unfair when an obligor's changed income, when used in a child support guideline calculation, shows an obligation "that is at least 20 percent and at least $50 per month higher or lower than the current support order." Id., subd. 2(a); see Bock v. Bock, 506 N.W.2d 321, 324 (Minn. App. 1993) (stating that if obligor submits evidence to rebut the statutory presumption of unfairness, the court must make findings whether or not it modifies support). In addition, the judge can make a new guidelines calculation solely on the basis of the obligor's income if other considerations are not shown to affect the award. Minn. Stat. § 518.551, subd. 5(c) (1996) (demanding consideration of other factors), (i) (stating that guidelines calculations are a rebuttable presumption and mandating findings of fact only on the obligor's income and such other factors that significantly affect the award); see Rouland v. Thorson, 542 N.W.2d 681, 684 (Minn. App. 1996) (stating that where obligor failed to raise an issue to the administrative law judge regarding the children's needs, obligor waived the issue); Buntje v. Buntje, 511 N.W.2d 479, 481 (Minn. App. 1994) (holding that statutory presumption to follow guidelines calculation places on the party requesting a deviation the burden to show facts justifying a different award).
Applying the statutory guidelines to appellant's net monthly income triggered the statutory presumption that appellant's obligation could be modified. And because the only evidence appellant presented, either to rebut the presumption for change or to prompt a deviation from an ordinary guidelines calculation, was evidence of his own financial circumstances, the judge was not required, as appellant argues, to make further findings regarding the circumstances of respondent or the child.
The judgment obligates appellant to inform respondent of increases in his income. Appellant has never voluntarily done so, even though his net monthly income increased from approximately $820 in 1985 to over $2,000 by 1992. The record adequately supports the judge's findings of these facts. But appellant asserts that his failure to disclose his salary increases was not "misrepresentation" and that the judge erred by failing to make express findings regarding misrepresentation. Appellant's argument is without merit. We have previously considered a child support obligor's failure to comply voluntarily with a dissolution decree order to produce financial records to be "misrepresentation" for purposes of retroactive modification of support. Johnson v. Johnson, 533 N.W.2d 859, 866 (Minn. App. 1995) (stating that misrepresentation is concealing or not disclosing facts that one has a duty to disclose and citing M.H. v. Caritas Family Servs., 488 N.W.2d 282, 288 (Minn. 1992)). The Johnson case is not, as appellant asserts, significantly distinguishable from the circumstances in the immediate matter.
The statutory presumption of cause for changing a support award was enacted effective August 1, 1991. 1991 Minn. Laws ch. 292, art. 5, § 79 (amending Minn. Stat. § 518.64 to add presumption). Before that time, an increase in the obligor's income alone was insufficient to support a modification. See Moylan v. Moylan, 384 N.W.2d 859, 864-65 (Minn. 1986) (requiring the court to make express findings on statutory factors, including the needs of the child, before modifying a support order). Because modification of appellant's support obligation for the six-month period from January 1, 1991, to July 31, 1991, was inappropriate without Moylan findings, we modify the order to make the altered award effective on August 1, 1991.
Generally, a court does not consider compensation received by a party for employment in excess of a 40-hour work week as income for the purposes of child support if the excess employment began after entry of the existing support order. Minn. Stat. § 518.64, subd. 2(b)(2)(i). But the party seeking to exclude overtime wages from a calculation of child support has the burden to demonstrate that the wages qualify for the statutory exemption. Id., subd. 2(b) ("[T]he court * * * shall not consider compensation received by a party in excess of a 40-hour work week, provided that the party demonstrates, and the court finds [the party has met a statutory condition.]"). Similarly, "net income" does not include union dues. See Minn. Stat. § 518.64, subd. 2(b)(1) (directing the court on a motion for modification, to apply § 518.551, subd. 5 (1996), which excludes union dues from "net income").
Although appellant testified that a portion of his wages was overtime, he never produced any evidence that this was true. The judge held the hearing record open for several weeks to permit an effort to obtain wage information from the Internal Revenue Service with appellant's authorization. The judge also allowed time for appellant to respond to the IRS information, and he failed to do so. Neither did he provide the court with any documentation regarding his union dues. Under these circumstances the judge did not err by relying on IRS-supplied income information as a basis for calculating child support.
Courts are required, under certain circumstances, to order a child support obligee and obligor both to contribute to the cost of medical and dental expenses for their child. Minn. Stat. § 518.171, subd. 1(c), (d) (1996). The judge appropriately applied the provisions of this statute, but the judge erred in imposing this obligation on appellant retroactively to December 1, 1995. Section 518.171, subdivision 1, does not provide for the retroactive imposition of a medical support obligation. We modify the order to impose the obligation from the date the order was entered.
Affirmed as modified.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.