This opinion will be unpublished and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:

Paul Norman Johnson, petitioner,



Lynette K. Johnson,


Filed November 17, 1998

Affirmed; motion denied

Randall, Judge

Olmsted County District Court

File No. F1-90-3528

Jeffrey D. Bagniefski, 423 Third Avenue Southeast, P.O. Box 189, Rochester, MN 55903 (for appellant)

Mary Alice C. Richardson, Richardson Law Office, Merchant Exchange Building, 18 Third Street Southwest, P.O. Box 656, Rochester, MN 55902 (for respondent)

Sharon L. Buffington, Buffington Law Office, P.O. Box 51, Stillwater, MN 55082 (for respondent)

Considered and decided by Randall, Presiding Judge, Foley, Judge,* and Holtan, Judge.**



Appellant challenges the district court's order modifying the amount of child support he is required to pay, alleging the district court incorrectly calculated his income by not taking into account unpaid vacation he is required to take. The record supports the district court's amended order, and we affirm.


Lynette and Paul Johnson were divorced by an order for judgment entered June 19, 1991. The decree awarded respondent Lynette Johnson sole physical custody of the parties' three minor children, now ages 13, 11, and 8. Appellant Paul Johnson was ordered to pay $600 per month in child support based on a net monthly income of $1,581.71.

On May 13, 1997, respondent moved the court for: (1) a modification of child support, (2) the right to claim the parties' children as dependents and exemptions for tax purposes, (3) an order requiring appellant to contribute towards the children's daycare expenses, and (4) attorney fees for bringing the motion.

On August 1, 1997, following a hearing, the district court issued its findings of fact, conclusions of law, and order. The court found that appellant's income had increased substantially since the judgment was issued, and it therefore increased his child support payment to $1,085 per month, thirty-five percent of his net monthly income. The court also ordered appellant to pay $82 a month towards child care expenses and $750 towards respondent's attorney fees. No judgment was entered as a result of the order.

Appellant moved the court for amended findings, but the district court denied appellant's motion in its entirety in an amended order issued December 12, 1997. Again, although the order directed that judgment be entered, it was not.

Appellant filed a Notice of Appeal, which was dismissed April 7, 1998, because it was not taken from an appealable order or judgment. On May 19, 1998, judgment was entered on the above orders, and appellant filed this appeal challenging the district court's calculation of his income. Respondent filed a motion to strike portions of appellant's brief as outside of the record. This court deferred the decision on respondent's motions to this panel.



The decision to modify a child support order will not be reversed on appeal absent an abuse of discretion. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). Before an appellate court will determine that the district court abused its discretion "[t]here must be 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 obligations are based on the obligor's net monthly income. Minn. Stat. § 518.551, subd. 5(b) (1996). Net income is defined as total monthly income, less federal and state income taxes, social security, reasonable pension deductions, health insurance, union dues, and any other child support or maintenance presently being paid. Id.

Appellant concedes that some modification of child support was reasonable, but argues the district court incorrectly calculated his income by failing to take into account the five-weeks' unpaid vacation and sick leave he alleges he is required take. In his motion for amended findings appellant submitted a letter from his union representative, a photocopy of a page from of his union handbook, and the previous year's W-2 statement. But in considering a motion for amended findings, the district court may not go outside the record or consider new evidence. Rathbun v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974). The district court properly refused to consider the additional evidence because it was not part of the record.

At the hearing on respondent's motion, appellant submitted evidence that he was paid $24.95 an hour and worked full time. He also submitted a copy of a check from his union compensating him for vacation pay, and he stated in an affidavit accompanying his responsive motion that he has always paid a portion of his vacation pay to respondent. On these facts we cannot say the district court erred by finding that appellant was employed 52 weeks a year with a gross annual income of $51,896.


A district court's discretion with regard to the allocation of attorney fees is broad. Reinke v. Reinke, 464 N.W.2d 513, 516 (Minn. App. 1990). Appellant argues the district court erred by requiring him to pay part of respondent's attorney fees because respondent has more net monthly income than he does after his child support payment is deducted from his income and added to hers. But respondent has sole physical custody of the three minor children of the parties and, thus, her living expenses are for a family of four. On these facts and considered in light of the discretion afforded a district court with regard to attorney fees, we cannot say that the district court abused its discretion with a modest award to respondent of $750.


Respondent filed a motion to strike certain pages of appellant's appendix, claiming that four pages of documents appellant submitted with his motion for amended findings should be stricken because they were not admitted as evidence. Respondent also requests attorney fees incurred in preparing this motion.

Minn. R. Civ. App. P. 110.01 states, in relevant part, that the record on appeal shall be composed of "[t]he papers filed in the trial court." Although it is true that the handwritten notes on the other pages respondent challenges were not received as part of the record below, the documents themselves are part of the record and can rightfully be included in the appendix. We have taken note of the fact that some of the pages contain personal handwritten observations. However, respondent's motion to strike and her related motion for attorney fees is denied.

Affirmed; motion denied.

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

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