IN COURT OF APPEALS
n/k/a Patricia Lynn Nielsen, petitioner,
Michael William Schoen,
Tamara J. Gerten, Gerten & Van Valkenburg, P.A., 303 East Little Canada Road, Saint Paul, MN 55117 (for respondent)
Timothy S. Choal, 155 South Wabasha, Suite 103, St. Paul, MN 55107 (for appellant)
Considered and decided by Short, Presiding Judge, Huspeni, Judge, and Willis, Judge.
Appellant challenges district court orders requiring appellant to pay retroactive child support arrears and modifying his child support obligation. We affirm.
In June 1986, a district court judgment dissolved the 10-year marriage of appellant Michael Schoen and respondent Patricia Schoen (n/k/a Patricia Nielsen). Respondent was awarded sole legal and physical custody of the parties' child, subject to visitation by appellant. The judgment required appellant to pay $71.69 per week in child support and to include a copy of his pay stub reflecting year to date income and deductions with his last support payment in March, June, September and December of each year.
In October 1988, appellant moved the district court for a decrease in his support obligation. The district court reduced appellant's child support obligation to $53.57 per week and ordered that appellant's obligation to provide [respondent] with periodic reports of accumulated earnings, as well as all other provisions in the original Decree remain in full force and effect.
In February 1991, respondent moved the district court for an increase in appellant's child support obligation. Appellant moved the court to "[m]odify paragraph three of Conclusions of Law dated June 30, 1986" by eliminating his quarterly income reporting requirement, established by the judgment and iterated in the November 1988 order. In April 1991, the court increased appellant's support obligation to $74.95 per week and denied "all other requests for relief proposed by either party."
In January 1997, respondent moved the court for an order (1) finding appellant in contempt because he had not provided either respondent or her attorney with the required quarterly year-to-date income information since 1991; (2) awarding respondent retroactive child support, if supported by appellant's wage documentation; and (3) increasing appellant's current child support obligation based on a substantial change in the parties' circumstances. Appellant attached to his affidavit a pay stub, which showed his gross income to be $2,682.51, including a payment of $369.76 labeled as "EXP REIMB."
The district court found that appellant acknowledged he had not provided the year-to-date income information to respondent since approximately 1991 and concluded that his failure to do so was a material misrepresentation of fact allowing for a retroactive increase in child support. The district court (1) ordered appellant to submit to respondent information documenting his income for the years 1988 through 1995; (2) reserved the matter of arrearages pending receipt of the income information and further submissions by the parties; and (3) increased appellant's child support obligation due to a substantial change in the parties' circumstances. The court reserved the contempt issue. In October 1997 and February 1998, the district court issued orders awarding respondent child support arrearages totaling $20,389.85. This appeal followed.
The decision to modify a child support order is within the district court's broad discretion. Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993), review denied (Minn. June 22, 1993). This court will reverse the district court's decision for abuse of that discretion only when it finds the district court came to a clearly erroneous conclusion against logic and facts in the record. Id.
1. Retroactive child support
Appellant challenges the retroactive increase of his child support obligation. Minnesota law provides that
[a] modification of support * * * may be made retroactive only with respect to any period during which the petitioning party has pending a motion for modification but only from the date of service of notice of the motion on the responding party * * * . However, modification may be applied to an earlier period if the court makes express findings that:
(1) the party seeking modification was precluded from serving a motion by reason of * * * a material misrepresentation of another party * * * and that the party seeking modification, when no longer precluded, promptly served a motion.
Minn. Stat. § 518.64, subd. 2(d) (Supp. 1997). An obligor's failure to comply timely with a court-ordered disclosure of income data is a material misrepresentation of the obligor's financial circumstances, which can justify retroactive modification of child support. Johnson v. Johnson, 533 N.W.2d 859, 866 (Minn. App. 1995).
Appellant contends that the April 1991 order eliminated his income reporting requirement and therefore his failure to provide that information to respondent was not a material misrepresentation of his financial circumstances. The June 1986 judgment ordered appellant to provide pay stubs on a quarterly basis. A child support modification order in November 1988 affirmed the reporting requirement. The district court denied appellant's 1991 motion to have the reporting requirement in the judgment lifted. We conclude that appellant's obligation to provide respondent with copies of his pay stubs continued after the April 1991 order.
Appellant argues that Johnson is inapposite because there the father refused to comply with the mother's oral requests to comply with an income disclosure order contained in the dissolution judgment, whereas here, for more than five and one-half years, neither party acknowledged that appellant had a reporting requirement or that he had failed to report. See id. But in Johnson, the court concluded that it would be inappropriate to "place the burden and expense on [the mother] to seek the immediate assistance of an attorney to preserve the [parties'] children's right to support." Id. Although respondent did not request the pay stubs from appellant until 1996, respondent had no obligation to seek the immediate assistance of an attorney to preserve the parties' children's right to support. We conclude that the district court did not abuse its discretion in finding that appellant's failure to provide income information was a material misrepresentation of fact and ordering appellant to pay retroactive child support.
2. Calculation of appellant's net income
Appellant contends that the district court erred in including in his net income a payment of $369.76 labeled "EXP REIMB" on the pay stub he submitted to the court. Appellant claims this was a one-time reimbursement by his employer of a business expense and therefore should not be included in his net income as a continuing source of income in determining his child support obligation. "Whether a source of funds is income for purposes of determining a person's child support obligation is a question of law." Sherburne County Social Servs. ex rel. Schafer v. Riedle, 481 N.W.2d 111, 112 (Minn. App. 1992). For purposes of determining child support, net income includes
in-kind payments received by the obligor in the course of employment, self-employment, or operation of a business if the payments reduce the obligor's living expenses[.]
Minn. Stat. § 518.551, subd. 5(b)(1) (1996). Some expenses reimbursed to an employee by an employer may be included in a child support obligor's net income. See, e.g., County of Nicollet v. Haakenson, 497 N.W.2d 611, 614 (Minn. App. 1993) (including pickup truck furnished by employer in net income); Bartl v. Bartl, 497 N.W.2d 295, 299 (Minn. App. 1993) (including $430 monthly living allowance from employer in obligor's net income).
Appellant relies on Bartl, where this court found that (1) the district court erroneously double-counted the $430 monthly living allowance provided to the child support obligor by his employer in calculating the obligor's net income; (2) concluded that the court's error was not harmless; and (3) reduced the obligor's net monthly income by $430. Bartl, 497 N.W.2d at 299. But here appellant provided the district court with no evidence of the nature of his reimbursed expenses. See Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn. App. 1985) (holding that district court did not abuse its discretion in maintaining current child support when obligor failed to submit adequate financial information to support substantial decrease in earnings). On this record, we cannot conclude that the district court abused its discretion in calculating appellant's net income.
 The statute was amended in 1997. 1997 Minn. Laws ch. 245, art. 1, § 29. The 1996 version of the statute was in effect at the time of the court's first order awarding respondent retroactive child support. The amendment does not change the substance of the applicable section but only renumbers the statute and adds additional subsections.