This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Kelli J. Cunningham,

Lower Court Petitioner,

County of Olmsted, petitioner,



Eric A. Salata,


Filed June 15, 1999

Reversed in part, affirmed as modified

Crippen, Judge

Olmsted County District Court

No. FX-96-1502

Julie S. Voigt, Assistant County Attorney, Government Center, 151 Southeast 4th Street, Rochester, MN 55904 (for appellant)

Lawrence D. Downing, 330 Norwest Center, 21 First Avenue Southwest, Rochester MN 55902 (for respondent)

Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Amundson, Judge.



Appellant Kelli Cunningham disputes a $1,065.53 reduction in the original $1,338 support obligation of respondent Eric Salata. Among the disputed parts of the reduction, we affirm one ($279.75) that was based on a decrease in respondent's gross income and another ($391.72) that was made because of new debt obligations. We reverse on other reductions because they were prohibited by a prior order of this court.


The daughter of the parties was born in Rochester in November 1995. Two days after the child's birth, respondent signed a recognition-of-parentage form. Early in 1996, appellant Cunningham took the child to Maryland, where respondent is employed, and she stayed for a few months. Because the relationship of the parties deteriorated, appellant moved back to her parents' home in Rochester.

In May 1996, respondent filed a motion in Minnesota to establish visitation with the child. Olmsted County then commenced an administrative action to establish respondent's obligations regarding public-assistance reimbursement and ongoing support. Following a hearing, an administrative law judge issued the October 1996 order that established respondent's $1,388 guidelines support obligation.

In June 1997, respondent filed a motion requesting sole custody of the child, increased visitation, and modification of the child-support order. The court modified the support obligation but on appeal the order was reversed and remanded because it was based partly on debt payments already due when the support obligation was determined in 1996.[1]

On remand, the trial court modified the support obligation in four respects. First, the court made an 18-month, $391.72 reduction due to respondent's medical school loan repayment obligations. This determination was consistent with the remand instruction that the court consider respondent's medical school debts to the extent they became due after the October 1996 child-support order.

A second reduction of $279.75 was based on a determination that respondent's gross income had decreased, causing a $1,119 decrease in net income, from $5,352.02 to $4,233.02.

A third reduction of $83.06 was explained by respondent's $332.25 monthly expenses for a pension plan, health coverage, and county tax at his Maryland residence.[2] These expenses, like some of respondent's debt payments, were already being paid in October 1996 but were not reported to the ALJ at that time. The deductions were recognized by the trial court in its erroneous 1997 modification order, and this court did not include these expenses among those issues the trial court could consider on remand.

Finally, the trial court made a reduction of $311 for visitation expenses.[3] Visitation expenses, like the pre-October 1996 debt payments and payroll deductions just discussed, were being experienced but not reported in October 1996, were included in the trial court's 1997 modification order, and were not among the items that this court said could be considered when the case was remanded.


Medical Education Debts

Appellant does not dispute that the court lawfully considered debt obligations arising after 1996 but contends that the court should not have reduced child support because of these expenses.[4] This modification of child support will not be reversed absent a showing that the court abused its broad discretion by reaching "a clearly erroneous conclusion that is against logic and the facts on record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Appellant has failed to identify compelling arguments that suggest an abuse of discretion.

Deductions from Gross Income

Appellant disputes the gross-income calculation, claiming it only represents a seven-month experience and is not representative of respondent's present earnings. We must affirm the trial court's finding because there is an adequate record of evidence showing that $4,233.02 is representative of respondent's current income. Minn. R. Civ. P. 52.01 (declaring that findings of fact are not to be set aside unless clearly erroneous).

Specific Deductions; Visitation

We independently review trial court determinations of law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). In this instance, respondent was barred, under the rule of res judicata, from reasserting the propriety of visitation expenses and certain deductions from gross income, all of which were being experienced by respondent in 1996, were not reported to the ALJ at that time, and were recognized by the trial court in its 1997 modification motion. That modification was reversed with a remand instruction confined to the declaration that the court could consider new debt payments, and this court expressly refused to excuse respondent's failure to report expenses to the ALJ in October 1996. It was an error as a matter of law to reinstate these items as a basis for the current modification. See Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988) (trial court's duty on remand is to execute mandate of remanding court "strictly according to its terms"). Although respondent presents this court with justifications for his failure to report these and other items to the ALJ in 1996, that issue is no longer before us. See Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966) ("even though the decision of this trial court in the first order may have been wrong, if it is an appealable order, it is still final after the time for appeal has expired").

Other Issues

Respondent contends that the trial court erred in providing that the support reduction for certain student-loan payments be for a period of only 18 months. Because respondent has not served and filed a notice of review under Minn. R. Civ. App. P. 106, this issue is not properly before us and we decline to address it.

Finally, appellant contends that various portions of respondent's brief should be stricken because they recite facts that were not in the record and make no mandatory references to the record. Because we have had no occasion to rely on any of these assertions of fact in deciding the case, we also decline to address these issues. But we note that under Minn. R. Civ. App. P. 110.01, the record on appeal is limited to matter presented to the trial court and that under Minn. R. Civ. App. P. 128.03, references to the record are required in briefs.

Reversed in part, affirmed in part.

[1] In the prior appeal, respondent claimed that in the 1996 proceedings he was unable to submit his proof on the child support issues because he then was engaged, in good faith, in questioning Minnesota jurisdiction and did not want to submit to jurisdiction in a Minnesota court. This court rejected that position, observing, in an unpublished opinion, that "we decline to reward Salata for failing to submit the necessary documentation, and contributing to the length of the proceeding by shopping for a more `favorable' forum in which to establish his child support obligation." In re Cunningham v. Salata, No. C4-97-1838, 1998 WL 157360, at *2 (Minn. App. Apr. 7, 1998).

[2] Appellant does not dispute the trial court's deductions from respondent's gross income for federal tax, state tax, or FICA.

[3] The county also disputes the calculation of this adjustment. Although $311 was directly deducted from the calculated child support rather than from respondent's income, it did not represent all of his visitation expenses--representing, instead, 50% of respondent's lowest visitation expense. We need not resolve this calculation dispute because of our recognition that the deduction for these expenses was improper.

[4] Appellant also challenges the calculation of the reduction because the trial court deducted debt payments directly from the support obligation. But the court reduced the obligation only 25% of the debts it properly considered, which is no different than subtracting all of these debts from respondent's net income. See Minn. R. Civ. P. (harmless error ignored).