This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-99-622

In Re the Marriage of:
Charyl Ann LeTourneau,
petitioner,
Appellant,

vs.

Glen David LeTourneau,
Respondent.

Filed November 9, 1999
Affirmed
Foley, Judge[*]

Dakota County District Court
File No. F9-97-15954

Mary H. Dunlap, Dunlap & Seeger, P.A., 206 South Broadway, Suite 505, P.O. Box 549, Rochester, MN 55903 (for appellant)

Mark Gray, 1422 West Lake Street, Suite 320, Minneapolis, MN 55408-2656 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

Appellant Charyl Ann LeTourneau seeks review of a judgment and an amended order alleging that the district court incorrectly determined respondent Glen David LeTourneau's income for child support purposes. Respondent filed a notice of review claiming that the district court lacked jurisdiction to hear appellant's motion for amended findings because the hearing was untimely. We affirm.

FACTS

The parties were married for 14 years. Appellant has been a full-time homemaker since 1991 and has custody of the couple's three minor children. Respondent has worked as a salesman for several years; he earns an annual salary of $15,000 plus sales commissions.

The parties reached a partial stipulation by the time of trial. Under it, the parties stipulated that respondent's monthly maintenance obligation would be $450 and that the district court would set respondent's child support obligation. Because the parties could not agree on respondent's income, they agreed to let the district court find that figure and apply the child support guidelines.

Respondent submitted an affidavit, which incorporated his September pay stubs. Each month, the following deductions were made: $85 for health insurance, $8.50 for dependent life insurance, and $35 for "SUPL ADD," apparently a health or pension deduction. His 401k contribution varies with each paycheck. In addition to a "regular" 401k contribution that reduces his gross income, respondent makes additional 401k contributions, and makes 401k loan payments. In September, his "regular" 401k contribution was $393 and he made an additional $196.79 contribution.

Both parties estimated respondent's 1998 annual gross income was $52,000. A certified public accountant's statement indicated respondent's gross income was $52,000 and his federal taxable income was $39,650. The CPA said respondent would owe $7,807 in federal taxes and $2,833 in state taxes. Respondent asserted that his 1998 net income was $30,760, or $2,563 per month, with the following annual deductions:

Federal tax         $7,807           Hospitalization         $1,542        
State tax         $2,833           401k         $5,080        
Social Security         $3,978              

Respondent also subtracted the $450 monthly maintenance payment to appellant to arrive at a monthly net income of $2,113.

Appellant, based on figures produced by a computer program, challenged respondent's income figures. By letter dated December 8, 1998, the district court said it could not accept appellant's method of determining respondent's income and therefore was adopting respondent's figures, including the deduction for maintenance. The letter stated that respondent's net monthly income was $2,113 and that support would be set at $739. Judgment was later entered consistent with the district court's letter.

On December 23, 1998, appellant served respondent with a motion for amended findings or, in the alternative, a motion for a new trial. Among other things, appellant alleged respondent's net monthly income should have been calculated without subtracting respondent's monthly maintenance obligation. Appellant's attorney also filed a proposed order for an extension because, due to illness, the district court judge was unavailable until after the period for new trial hearings allowed by Minnesota Rules of Civil Procedure 52.02 and 59.03. The trial judge granted an extension for the hearing date on January 21, 1999. The court later amended its findings to state, without explanation, that respondent's monthly net income was $2,417.50 and that guideline child support was $846.13.

D E C I S I O N

1. District Court's Jurisdiction to Hear Motion for Amended Findings

Respondent claims the district court lacked jurisdiction to hear appellant's motion for amended findings because it was not heard within the required time period and the extension was granted late.[1] A motion for amended findings must be made within the time allowed for new trial motions. Minn. R. Civ. P. 52.02. A notice of motion for a new trial

shall be served within 15 days after a general verdict or service of notice by a party of the filing of the decision or order; and the motion shall be heard within 30 days after such general verdict or notice of filing, unless the time for hearing be extended by the court within the 30 day period for good cause shown.

Minn. R. Civ. P. 59.03. Where an extension is not requested and granted for "good cause shown" within the 30-day period, the court lacks jurisdiction to extend the hearing date. Celis v. State Farm Mut. Auto. Ins. Co., 580 N.W.2d 64, 66 (Minn. App. 1998).

Appellant served respondent with notice of filing on December 17, 1999, but an extension was not granted until January 21, 1999. Adding 3 days for service by mail, the extension order was signed 2 days after the 30 days expired. See Minn. R. Civ. P. 6.05.

The Celis opinion relies on U.S. Leasing Corp. v. Biba Info. Processing Servs., Inc., 489 N.W.2d 231 (Minn. 1992). In Biba, the supreme court held that a new trial motion was properly dismissed where the notice of motion and motion set the hearing date beyond the 30-day limitation period, neither party requested an extension, and the court itself was not involved in scheduling the hearing. Biba, 489 N.W.2d at 232. The court emphasized that the scheduling of the hearing date in the motion paper was a "unilateral action" by counsel and that there was no judicial determination of good cause for an extension. Id.

The present case is more like American Standard Ins. Co. v. Le, 551 N.W.2d 923, 925-26 (Minn. 1996). In Le, the supreme court held that the district court improperly dismissed the posttrial motions where the hearing was held after the 30-day period and no extension was granted but the delay was due to the court administrator rather than the parties. Biba and Le indicate that whether the delay is attributable to the party or the district court is relevant to the court's determination.

Here, the delay was not the product of counsel's unilateral action; counsel timely filed her proposed order for extension with the court. The court administrator should have asked another judge to sign the order in light of the presiding judge's extended absence. Instead, it appears that the proposed order for an extension languished on the district court judge's desk while he was out ill. While the district court judge could not have been expected to rule on the issue during his illness, counsel is not devoid of responsibility for the delay. Counsel has an obligation to verify that the order is signed within the 30-day period. But since the delay was not due to counsel's unilateral action, we hold that the district court properly refused to dismiss appellant's motion. As the district court judge said in response to respondent's motion to dismiss, the parties should not be penalized for his ill health. Under the circumstances of this case, it is best to decide the matter on the merits.

2. Income Determination

The district court has broad discretion to provide for child support. Rutten v. Rutten, 347 N.W.2d 47, 51 (Minn. 1984). Further, an appellate court will not reverse a district court's determination of net income used to calculate child support if it has a reasonable basis in fact. Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987).

Appellant first argues that the district court failed to consider the required factors in setting support and that the findings are inadequate by not describing its income calculations. We disagree. The court must approve a child support stipulation of the parties if each party was represented by independent counsel, unless the stipulation does not meet the conditions of Minn. Stat. 518.551, subd. 5(i) (1998). Minn. Stat. 518.551, subd. 5(a) (1998). Paragraph (i) of this statute provides that the support guidelines are "a rebuttable presumption" and, if support does not deviate from the guidelines, the only findings needed are those "concerning the amount of the obligor's income used as the basis for the guidelines calculation and any other significant evidentiary factors." Minn. Stat. 518.551 subd. 5(i).

Here, the parties stipulated to guideline support and the district court accepted the parties' stipulation, found respondent's income, and applied the support guidelines. Because this is all the statute requires, we reject appellant's contention that the findings in the original judgment are inadequate.

Appellant also argues that the district court erred in his amended findings, apparently because it did not explain its calculations. In its amended findings, the court increased respondent's net income by $304.50 to $2,417.50 per month. Appellant admits that, as she requested, the prospective spousal maintenance award of $450 per month was included in income in the amended order. See Driscoll v. Driscoll, 414 N.W.2d 441, 446 (Minn. App. 1987) (holding prospective maintenance awards can not be subtracted from income prior to applying the child support guidelines). We hold that, while the district court failed to explain why less than the full maintenance obligation was added to respondent's net income, any error was harmless. Appellant did not allege any prejudice; her only complaint is that the error would complicate a modification proceeding. See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (to prevail on appeal, appellant must show both error and prejudice). But, even if the finding understates respondent's income, any such error will assist appellant in future modification proceedings by making it easier to find an increase in respondent's income and harder to find a decrease. See Minn. Stat. 518.64, subd. 2(a) (1998) (allowing support modification upon substantial change in circumstances rendering existing support obligation unreasonable and unfair). Therefore, regarding appellant, any error is de minimis, if not harmless. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimis error); Minn. R. Civ. P. 61 (harmless error to be ignored).

Appellant argues that the district court erred in adopting respondent's income figures alleging that he overstated his 401k and health insurance expenses. We disagree. Appellant argues that respondent's claimed 401k contribution of $5,080 is overstated based on his year-to-date contributions. Appellant estimated respondent contributes $3,120 annually by averaging his year-to-date contributions. However, appellant only considered the "regular" contributions, not the additional contributions respondent makes. We hold that the district court findings have a reasonable basis in fact.

Appellant asserts that the annual health insurance deduction is $1,020 rather than the $1,542 respondent claimed. It appears respondent included his pay stub deductions for "SUPL ADD" and dependent life insurance. The "SUPL ADD" from respondent's pay stub is properly deducted because it is treated identically to other health insurance deductions on respondent's pay stub. But under the plain meaning of the statute, life insurance should not be deducted as "dependent health insurance." See Minn. Stat. 518.551, subd. 5(b) (1998) (listing deductions allowed for calculation of net income for support purposes).

However, deducting the $8.50 per month in life insurance is harmless error. See Bunge v. Zachman, 578 N.W.2d 387, 390 n.3 (Minn. App. 1998) (holding mistake that would change childcare payment by approximately $10 per month was de minimis), review denied (Minn. July 30, 1998). While the life insurance deduction was in error, the amount has a negligible effect on the child support amount.

Appellant argues the district court erred in failing to consider (1) the tax benefits respondent receives due to the income tax deduction for maintenance payments, and (2) that the 401k and health insurance contributions reduce respondent's taxable income, thereby reducing his tax liability.[2] We disagree. Net income is properly calculated based upon money available to the taxpayer from which to pay support. Dinwiddie v. Dinwiddie, 379 N.W.2d 227, 229 (Minn. App. 1985). In determining available income for child support purposes, the district court has some discretion in determining a party's potential tax liability. See Pavlasek v. Pavlasek, 415 N.W.2d 42, 44-45 (Minn. App. 1987) (holding that while appellant's argument regarding tax liabilities had some merit, the district court did not clearly err in determining income where evidence supported district court finding and appellant failed to provide evidence to the contrary).

Both parties estimated respondent's income is $52,000.[3] According to the CPA's statement, no income tax deduction for maintenance was taken. The district court relied on the CPA's tax calculations in respondent's figures after it found appellant's calculations were not credible. Appellant continues to rely on an analysis that the court rejected. Although appellant's arguments may have had some merit if they were credible, the district court concluded they were not. We defer to district court credibility rulings. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). The district court findings have a basis in fact and are not clearly erroneous.

Affirmed.

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

[1] Appellant argues respondent cannot raise this issue because his notice of review did not notify her of this issue. But respondent fulfilled the requirements of Minn. R. Civ. App. P. 106 by timely filing a notice of review indicating the order to be reviewed.

[2] Contrary to respondent's assertion, the stipulation does not resolve this issue. Minnesota courts regard stipulations as binding contracts and favor them in dissolutions. Geiger v. Geiger, 470 N.W.2d 704, 707 (Minn. App. 1991), review denied (Minn. Aug. 1, 1991). In order to be effective, stipulations must, on their face, express the parties' clear intent. Id. (holding that stipulation was not sufficient to change a presumption where stipulation merely restated statutory guidelines and dealt with nonbargainable interests of children). In this case, the parties' stipulation merely stated that the court should decide the guideline support amount. This language does not express any clear intent regarding specific tax calculations. Additionally, it involves nonbargainable interests of children that are less subject to stipulation.

[3] Appellant claims respondent calculated his taxes on a $4,333 monthly income. However, the $4,333 figure is respondent's gross income divided into months, not his taxable income divided into months.