This opinion will be unpublished and

may not be cited except as provided by

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




Kelly M. Stephanus, a/k/a Kelly M. Betzler, petitioner,



Jeffery L. Betzler,


Filed December 2, 1997


Davies, Judge

Lake County District Court

File No. F682136

Jeffery A. Dobberpuhl, Johnson and Morris Law Offices, Norwest Bank Center, Suite 103, Silver Bay, MN 55614 (for respondent)

Timothy D. Lees, Lawrence D. Olson & Associates, P.A., 2860 Snelling Ave. N., St. Paul, MN 55113 (for appellant)

Considered and decided by Lansing, Presiding Judge, Davies, Judge, and Willis, Judge.



Appellant-father challenges the district court's order denying his motion for modification of child support and the district court's inclusion of overtime compensation in its calculation of his child support obligation. We affirm.


The marriage of appellant Jeffrey L. Betzler and respondent Kelly M. Betzler (now Kelly M. Stephanus) was dissolved in March 1983. Physical custody of the parties' first child was awarded to respondent, and appellant was ordered to pay $200 a month in child support.

A second child was born to the parties in October 1988. In February 1995, the district court transferred physical custody of the older child to appellant and awarded physical custody of the younger child to respondent. By order dated July 13, 1995, the court ordered appellant to pay $604.22 as monthly child support and respondent to pay $332.21 as monthly child support. Appellant also was ordered to pay $987.36 in attorney fees.

In October 1996, respondent moved to have custody of the older child returned to her. At the hearing, the parties indicated that they had agreed on transfer of custody and on visitation, but that the amount of child support was in dispute. The district court, by order dated October 31, 1996, concluded, based on payroll records, that appellant had a net monthly income of about $2,995. The court also found that appellant had failed to establish that overtime compensation should be excluded from the court's calculation of his child support obligation. A December 10, 1996, judgment returned physical custody of the older child to respondent and set appellant's monthly child support obligation for both children at $898.50 (the guidelines amount).

In March 1997, appellant moved for a reduction in his child support, based on a change of employment. In denying the motion, the district court found that appellant had "been less than candid and straight with the Court in disclosing income and his financial circumstances generally" and that he had not established the appropriateness of a downward modification of his child support obligation. The court determined that appellant was in contempt of the court's previous orders to pay attorney fees and provided appellant with an opportunity to purge himself of the contempt.

Appellant appealed orders of July 13, 1995, October 31, 1996, December 10, 1996, and March 26, 1997. This court: (1) dismissed the appeal of the July 13, 1995, order as untimely; (2) construed the appeal of the December 10, 1996, order to be from the judgment of the same date and ruled that the judgment incorporated the October 31 order; and (3) allowed the appeal from the March 26, 1997, order. This court dismissed as premature the appeal from the contempt provision of that order. Stephanus v. Betzler, No. C9-97-801 (Minn. App. June 3, 1997) (order op.).


I. Appeal of December Judgment

Respondent now argues that the December 10, 1996, judgment is not appealable because it was based on the parties' stipulation. See Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997) (when judgment is based on stipulation, stipulation merges into judgment and cannot be attacked unless party meets requirements of Minn. Stat. § 518.145, subd. 2). The record is clear, however, that the parties did not stipulate to the amount of child support; they stipulated only to custody and visitation issues. Because appellant's child support obligation was determined by the district court, it can be appealed. See Angelos v. Angelos, 367 N.W.2d 518, 520 (Minn. 1985) (a final order, decision, or judgment denying or granting modification of support is appealable as of right).

II. Overtime Compensation

"A trial court has broad discretion with respect to child support, and this court will not reverse the trial court's decision unless it is clearly erroneous." Strauch v. Strauch, 401 N.W.2d 444, 447 (Minn. App. 1987). "A determination of net income for the purpose of calculating child support will be affirmed if it has a reasonable basis in fact." Id. at 448.

Appellant contends that after the change of custody the district court failed to determine whether appellant's overtime began, or increased, after the entry of the previous support order. On a motion for modification of child support, the court

shall not consider compensation received by a party for employment in excess of a 40-hour work week, provided that the party demonstrates, and the court finds, that:

(i) the excess employment began after entry of the existing support order;

(ii) the excess employment is voluntary and not a condition of employment;

* * * .

Minn. Stat. § 518.64, subd. 2(b)(2) (1996); see also Johnson v. Johnson, 533 N.W.2d 859, 864 (Minn. App. 1995) (when support obligor works more overtime after marriage dissolution, court should view the extra post-dissolution overtime as excludable in modification proceeding).

Here, the previous support order (dated July 13, 1995) does not indicate whether appellant was then working any overtime hours. The district court declined to make an overtime determination because appellant failed to provide the needed information. Appellant now has no grounds to complain. See Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn. App. 1985) (party will not be heard to complain after failing to provide court with reviewable record).

Appellant also contends that the district court did not consider whether overtime was voluntary and not a condition of employment. Again, appellant has not provided the relevant information, other than by an untimely affidavit dated February 21, 1997, which states that his previous employment "required" overtime. This directly contradicts an October 1996 affidavit in which appellant stated that overtime was not then required as a condition of his employment.

Appellant provided the district court with a copy of one 1995 pay stub, dated March 15, 1995, which lists 6.25 hours of overtime pay. (The 1995 pay stub was not provided to the court until June 1996, too late to be considered for the July 1995 order.) This pay stub indicates that appellant was working at least some overtime hours before the entry of the July 13, 1995, support order. Because appellant did not demonstrate that his overtime work increased after the July 13, 1995, order, the district court did not err in including appellant's overtime compensation in its calculation of appellant's child support obligation.

III. Modification of Child Support

"Traditionally, a child support modification ruling is disturbed on appeal only if the trial court abused its discretion." Lee v. Lee, 459 N.W.2d 365, 368 (Minn. App. 1990), review denied (Minn. Oct. 18, 1990). A reviewing court will find an abuse of discretion only where there is a "clearly erroneous conclusion that is against logic and the facts on record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

Child support may be modified if the obligor shows that substantially increased or decreased earnings make the original terms unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (1996). There is a presumption of a substantial change in circumstances and "the terms of a current support order shall be rebuttably presumed to be unreasonable and unfair" if guideline support based on an obligor's present income would be at least 20 percent and at least $50 per month higher or lower than the current order. Id. The party requesting modification has the burden of proving that a substantial change in circumstances has occurred. Meier v. Connelly, 378 N.W.2d 812, 818 (Minn. App. 1985).

Here, appellant argues that the district court erred (in its March 26, 1997, order) when it failed to amend appellant's child support obligations. Specifically, appellant contends the district court failed to base appellant's obligation on his current income.

The record shows that in his previous employment appellant earned $16.30 an hour as regular pay, $16.80 an hour as shift pay, and $24.45 an hour as overtime pay. With his new employer, appellant is making $16.27 an hour ($14.87 as regular pay plus $1.40 an hour for a license premium). An additional $.51 an hour is added when appellant works the afternoon shift. Overtime pay is $22.30 an hour. The pay stubs also indicate that appellant's previous employer deducted payments for medical and dental insurance; the new employer does not. As to the amount of overtime worked, appellant has provided only the first two pay stubs from his new job, one of which shows overtime pay. This is insufficient documentation to show a substantial decrease in earnings, especially in light of appellant's history of considerable overtime work. The district court did not abuse its discretion in determining that appellant had not established the appropriateness of a downward modification in his child support obligation.

Respondent's request for sanctions and attorney fees is denied.