This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. sec. 480A.08, subd. 3 (1998).


In Re the Marriage of:
Gerald J. Gervais, petitioner,



Karen Lynn Gervais,

Filed July 6, 1999
Randall, Judge

Washington County District Court
File No. F098708

William E. Haugh, Jr., Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1100 First National Bank Building, 332 Minnesota Street, Saint Paul, MN 55101-1379 (for appellant)

Michael Ormond, Ormond Law Offices, 300 Sexton Building, 529 South Seventh Street, Minneapolis, MN 55415 (for respondent)

Considered and decided by Randall, Presiding Judge, Davies, Judge, and Foley, Judge.[*]



Appellant-father Gerald Gervais challenges the district court's finding of his income, finding of his support arrears, denial of his post-hearing motion, and award of attorney fees to respondent-mother Karen Gervais. We affirm.


The stipulated judgment dissolving the parties' marriage awarded father the family business, awarded mother custody of the parties' two children and child support, gave each party a tax-dependency exemption for one child, and stated either party could recover attorney fees from the other if the other breached the agreement. Later, mother moved to collect unpaid support and for increased support. Father sought reduced support and to recover what he alleged were overpayments of support. The district court imputed a $5,000 net monthly income to father, set his support obligation for the remaining minor child accordingly, and set father's arrears after refusing to credit him with certain payments he alleges he made to and on behalf of mother. The district court also awarded mother attorney fees. After finding a check register allegedly showing payments for which he was not given credit, father made post-hearing motions. The district court denied those motions. Father appeals.



Father challenges the imputation to him of a $5,000 net monthly income. A finding of net income will be affirmed if it has a reasonable basis in fact. Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987). Support may be modified if the moving party shows a substantial change in circumstances rendering the existing award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (1998). Whether to modify support is discretionary with the district court. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). When setting support, the district court has "broad discretion" and will not be reversed absent a "clearly erroneous conclusion that is against logic and the facts on record." Id.

Father alleges the district court did not follow the statutory formula when imputing income to him. See Minn. Stat. § 518.551, subd. 5b(f) (1998) ("[i]ncome from self employment is equal to gross receipts minus ordinary and necessary expenses"). The district court's discussion of what it considered when imputing income to father shows that it believed an accurate determination of father's income required consideration of more than the factors in the statutory formula. Thus, the district court functionally found that it was impracticable to determine father's income with the statutory formula. See Veit v. Veit, 413 N.W.2d 601, 606 (Minn. App. 1987) (allowing income to be imputed to support obligor if it is impracticable to determine obligor's actual income).

Father challenges the finding of his income, alleging the district court disregarded his depreciation deductions and business expenses. When imputing income to father, the district court found father's depreciation deductions were "for tax purposes only" and stated that it considered father's "[alleged] depreciation deductions and business expenses." Indeed, in its post-trial order, the district court rejected the assertion that it did not consider father's depreciation and business deductions.[1]

Apparently concluding much of the $6,433 in monthly expenses claimed by father were properly attributable to father's business, the district court found father's reasonable monthly household expenses to be $2,780. In imputing a $5,000 net monthly income to father, however, the district court stated "[father's] claimed monthly living expenses total $6,433." Father alleges this inconsistency renders the $5,000 figure defective and that much of his alleged $6,433 in expenses is debt repayment. We initially note that father is arguing that the district court erred by using the amount father claimed his monthly expenses to be in determining his income. Secondly, regardless of the reason for the expenses father claimed, they must be paid. Therefore, either father or his business apparently has the ability to do so. Thirdly, the record contains (a) statements by father that he develops his real estate for sale; (b) evidence that his net worth increased from $709,700 in 1987 to $1,077,055 in 1997; (c) allegations by mother that father uses his business equipment to develop his land; and (d) allegations by father that the increase in the value of his land is due to "appreciation only". To the extent the increase in father's net worth is due to father's use of his business equipment (and hence the incurring of business expenses), not to consider the increase for support purposes would allow father to use business expenses to siphon funds out of the pool of assets available for child support, while allowing him to retain the benefit of the use of those funds as increased value in his real estate. This result would be inconsistent with case law. See Letourneau v. Letourneau, 350 N.W.2d 476, 478 (Minn. App. 1984) (stating children entitled to benefit from income of non-custodial parent and to enjoy standard of living they would have had if marriage had not been dissolved).

In imputing income to father, the district court considered father's "increased net worth, [and] past and future land sales[.]" Father alleges this is incorrect under Quaid v. Quaid, 403 N.W.2d 904, 907 (Minn. App. 1987), review denied (Minn. Jun. 30, 1987), because the district court did not consider mother's resources and the children's needs. The district court stated it had to consider the statutory factors. It also found mother has a doctorate, is the director of a local establishment, and is a professor at a local college. These findings show that the district court had a reasonably specific awareness of the relevant financial circumstances when it considered father's land sales in setting support. Father's support obligation is not defective under Quaid.


Father challenges the finding of his arrears. He argues that the district court should have credited him for payments he made to mother and on her behalf, particularly payments made while mother and the children lived with him during summers after the dissolution. Much of father's argument is based on Karypis v. Karypis, 458 N.W.2d 129 (Minn. App. 1990), review denied (Minn. Sept. 14, 1990). Karypis has been superseded by statute. See 1991 Minn. Laws ch. 266, § 3 (now codified at Minn. Stat. § 518.57, subd. 3 (1998)) (district court "may" rule support obligation satisfied by obligor's care for child while child lives with obligor, if, among other things, child is integrated into obligor's family with obligee's consent). The district court did not find integration with mother's consent, and father does not argue it occurred. Therefore, the statute is not offended by the district court's refusal to credit father with the payments in question. In addition, in the post-trial proceedings, the district court reviewed the check carbons father submitted, noted most did not relate to support issues, and found that, based on the "totality of the circumstances[,]" it was not persuaded the other check carbons represented payments to mother for support purposes. We defer to what is functionally the district court's determination that father is not credible on this issue. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (holding deference must be given to district court's opportunity to assess credibility of witnesses); see Kennedy v. Kennedy, 403 N.W.2d 892, 897 (Minn. App. 1987) (stating appellate courts review evidence in light most favorable to trial court findings).[2]

Father alleges the district court should have reduced his arrears by the tax benefit mother received when she, with father's permission, used the tax-dependency exemption the judgment awarded father. Treatment of matters involving dependency exemptions is discretionary with the district court. Cf. Joneja v. Joneja, 422 N.W.2d 306, 310 (Minn. App. 1988) (stating district court has discretion to modify apportionment of tax-dependency exemptions). Because father had only nominal income for tax purposes and would have received little, if any, benefit by using the exemption, we cannot say the district court abused its discretion by not reducing father's arrears by the tax benefit conferred on mother.

Father alleges mother is estopped from seeking arrears under McNattin v. McNattin, 450 N.W.2d 169 (Minn. App. 1990). Estoppel was not addressed by the district court. Mother alleges the issue was not raised below. Either defect means the issue is not properly before this court. See Thiele v. Stich, 425 N.W.2d at 580, 582 (Minn. 1998) (stating reviewing courts consider "'only those issues the record shows were presented and considered by the trial court'") (quoting Thayer v. American Fin. Advertisers, Inc., 322 N.W.2d 599, 604 (Minn. 1982)) (emphasis added). We note, however, that McNattin is distinguishable because it involved an "unusual" record on which this court deferred to the district court's exercise of its discretion to accomplish what was equitable. Here, father asks this court to reverse the district court and produce a result favoring a party the district court found not credible. We decline to do so.


Citing his post-judgment discovery of his check register, father claims the district court should have granted his motion for a new trial for "newly discovered evidence." To the extent the proceedings addressed child-support modification, a new trial motion was not authorized. See Huso v. Huso, 465 N.W.2d 719, 721 (Minn. App. 1991) (stating "new trial" motions not authorized in post-judgment modification proceedings). To the extent the proceedings addressed enforcement of the judgment, there was no witness testimony in the proceedings and father has not shown such proceedings could constitute a trial. Therefore the district court did not abuse its discretion by denying father's motion for a new trial. See Erickson v. Erickson, 430 N.W.2d 499, 500 n.1 (Minn. App. 1988) (noting motion for new trial is "an anomaly where there has been no trial").


Citing the judgment provision allowing a non-breaching party to collect attorney fees from a breaching party, the district court awarded mother attorney fees for father's failure to pay support. Father challenges the fee award, alleging he "satisfied all child support obligations." Because we affirm the finding of father's support arrears, we affirm the fee award.


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

[1] Father cites an unpublished opinion to support his argument on this issue. Unpublished opinions are of limited value in deciding an appeal. See Minn. Stat. § 480A.08, subd. 3(c) (1998) ("[u]npublished opinions of the court of appeals are not precedential") (emphasis added); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 801 (Minn. App. 1993) (stating dangers of mis-citation and unfairness associated with use of unpublished opinions and while persuasive, "[t]he legislature has unequivocally provided that unpublished opinions are not precedential").

[2] Similar analyses address both father's allegation that the district court should not have used the $20,800 figure in a May 1993 letter he signed as an accurate representation of his arrears at that time and father's disputed allegation that the parties agreed he would support mother and the children during the summers.