This opinion will be unpublished and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:

Douglas A. Rupp, petitioner,



Debra Rupp,


Murray County,


Filed July 21, 1998


Huspeni, Judge

Murray County District Court

File No. FX93204

Ruth Ann Webster, Gislason, Dosland, Hunter & Malecki, P.L.L.P., P. O. Box 458, New Ulm, MN 56073-0458 (for appellant)

Debra Rupp, P. O. Box 12, Pipestone, MN 56164 (pro se respondent)

Andrew E. Hagemann, Jr., Mork, H. Darling, Hagemann & Kohler, 912 Third Ave., P. O. Box 607, Worthington, MN 56187 (for respondent Murray County)

Considered and decided by Willis, Presiding Judge, Huspeni, Judge, and Forsberg, Judge.[*]



Appellant challenges the modification of his child support obligation, arguing that the administrative law judge (ALJ) erred in finding a substantial change in circumstances, in refusing to deduct repayment of business debt from appellant's income, and in using the average of three years' income to determine net monthly income. Because we see no abuse of discretion, we affirm.


Appellant Douglas Rupp is the sole owner of two heavy construction companies, one operating in Minnesota and one in South Dakota; of a third company that leases heavy equipment to his construction companies; of rural real estate used as farm land and as a source of gravel for his construction companies; and of commercial real estate in Minnesota, South Dakota, and Arizona.

He and respondent Debra Rupp married in 1991; their child, A.C.R., was born in 1993. When the parties separated later that year, the child was in the custody of respondent, and appellant's child support was set at $400 monthly. In 1996, on respondent's motion for modification, an ALJ increased child support to $628 monthly. Appellant's motion for reconsideration was denied, and he challenged the modification in this court. Rupp v. Rupp, No. C5-97-4 (Minn. App. Aug. 5, 1997) (reversing and remanding for further findings on appellant's non-salary income).

On remand, the ALJ heard evidence from appellant's accountant as to appellant's various sources of income and expenditures, and viewed exhibits showing appellant's cash analysis for 1994, 1995, and 1996. The accountant referred to a balance sheet he prepared to testify that the value of appellant's assets is approximately $2,000,000, but that these assets add only about $200 monthly to appellant's cash flow. The accountant also testified that appellant's net worth had increased $130,000[1] and explained the sources of that increase. At the request of the ALJ, the balance sheet was admitted as an exhibit over the objection of appellant's attorney.

The ALJ found that appellant had an average annual income of $58,261 and a net monthly income of $4,855.08, and set child support at the 25% guideline amount, $1,214. Appellant challenges the averaging of his incomes for 1994, 1995, and entire year 1996 to arrive at an annual income, the use of the 1994 income to establish a change in circumstances from the time of the original order, and the refusal to deduct payments of business debt from net monthly income.


Modification of child support will not be reversed absent an abuse of discretion. Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993), review denied (Minn. June 22, 1993).

1. Use of post-August 1996 income

Appellant claims that his income during the last half of 1996 was significantly greater than during the first half and argues that, because the increase in child support is retroactive to August 1996, when respondent first moved for modification, his income should be calculated as of that date. Appellant offers no support for his argument and provides no evidence as to how much of his 1996 income accrued prior to August.[2]

Appellant interprets this court's August 1997 remand for "further findings of fact on appellant's current net income" to mean his income as of August 1996. However, this court's prior opinion included no time restriction. August 1996 was one year before the court's opinion remanding and 16 months before the ALJ's decision on remand. Absent some indication that "current net income" did not refer to the time at which income was being determined, there is no basis for appellant's interpretation.

It was not an abuse of discretion for the ALJ in December 1997 to use appellant's entire 1996 income in calculating child support.

2. Use of 1994 income

Appellant's 1995 income was significantly lower than either his 1994 income or his 1996 income. He argues that the ALJ should have used only the 1995 income to determine if there had been a change in circumstances as of August 1996. Veit v. Veit, 413 N.W.2d 601 (Minn. App. 1987), specifically rejects this view. In Veit, the obligee spouse objected to the inclusion of "a financially disastrous year" in determining the obligor's income.

[The obligor's] income fluctuates. An average takes into account fluctuations and more accurately measures income. The trial court therefore properly relied on [the obligor's] average cash flow and additional available funds in calculating [his] net monthly income * * *.

Id. at 606. Using only the lowest of appellant's three prior years' income would have given an inaccurate picture of his financial condition. There was no abuse of discretion in averaging his income for 1994, 1995, and 1996.

3. Refusal to deduct payments on principal

The ALJ found a substantial increase in appellant's net monthly income. Appellant contends that because he makes payments on the principal owed on various business debts from his after-tax income, his income has actually decreased since child support was modified in October 1996.[3]

Depreciation and depletion were included in calculating appellant's net income: $87,928 for 1994, $36,500 for 1995, and $50,354 for 1996. In addition to these deductions, appellant seeks "net debt payment" deductions of $55,936 for 1994, of $20,675 for 1995, and of $16,581 for 1996.

The parties cite no case law relating directly to net debt payments. However, this court considered a similar situation in Larson v. Larson, 370 N.W.2d 40 (Minn. App. 1985) (reviewing the child support obligation of an obligor parent who was operating a farm and remanding for a determination of whether the farm was a tax shelter or a legitimate business).

We recognize that the use of tax shelters may actually increase the obligor's financial resources in the long run, although reducing the cash available on a monthly basis. An obligor may be able to persuade a trial court that downward deviation from the monthly support guidelines is appropriate in such a case if the child receives the benefit of the parent's increased financial resources in some other form, but a parent may not increase his or her capital net worth and at the same time avoid child support because less cash is available on a monthly basis.

Id. at 43 (emphasis added). Appellant cannot increase his net worth by making these net debt payments and simultaneously avoid his child support obligation because he has less cash available. There is no indication in the record that the child would benefit from appellant's increased financial resources resulting from payment of the principal. To the contrary, we conclude that permitting appellant to deduct net debt payments from net income would result in increasing appellant's net worth at the expense of support needed by the minor child.

Nor do we see any indication that disallowing the net debt payments will jeopardize appellant's businesses or limit his ability to earn. He presented no evidence that his businesses are not thriving.

Appellant presented evidence of his claimed household living expenses; they are $3,163 monthly or $37,956 annually. Even if appellant paid no child support, the net debt payments allegedly made in 1994, 1995, and 1996 would have reduced his income to well below his living expenses for all three years and to less than half his living expenses in 1995. "The assets and resources of a sole business owner may properly be considered if the figures offered do not comport with evidence of that person's lifestyle." Marx v. Marx, 409 N.W.2d 526, 529 (Minn. App. 1987) (upholding the trial court's rejection of an obligor's inconsistent financial evidence and its estimation of his income by adding annual wages to interest income, less 25% for taxes and other deductions). The "net debt payments" appellant reported do not comport with the evidence he provided of his lifestyle.

The ALJ was within his discretion in rejecting deductions for net debt payments, in using appellant's 1994 income to find a change in circumstances, and in averaging the income for three years to arrive at an annual income. The ALJ did not abuse his discretion in ordering guideline child support.


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

[1] It is not clear from the record when the increase occurred.

[2] His accountant could testify only that he thought gravel royalties "would be more in the second half [of the year,]" that the farm rental income would be equal, and that he thought government farm program payments "generally will always come in the second half of the year."

[3] Appellant claims his child support obligation should be reduced from $628 to either $567 (if his 1994 income is averaged in), or $517 (if his 1994 income is excluded from the calculation).