This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1518

In re the Matter of:
Constance Sue Tipler, petitioner,
Respondent,

vs.

Thomas Leslie Edson,
Appellant,

and

County of Anoka, intervenor,
Respondent.

 

Filed May 23, 2006

Affirmed
Crippen, Judge*

 

Anoka County District Court

File No. F8-96-51031

 

Constance Sue Tipler, 4173 Austin Street Northeast, Blaine, MN 55014 (pro se respondent)

 

Robert M.A. Johnson, Anoka County Attorney, Bethany A. Fountain Lindberg, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Seventh Floor, Anoka, MN 55303 (for respondent County of Anoka)

 

Mark A. Olson, Olson Law Office, 2605 East Cliff Road, Burnsville, MN 55337 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge, Worke, Judge, and Crippen, Judge.

U N P U B L I S H E D  O P I N I O N

 

CRIPPEN, Judge

 

On appeal in this child-support modification dispute, appellant argues that the district court overstated his income available for child-support purposes by including overtime income and by using an income-averaging method to find his income.  The court’s findings being adequately supported by the record, we affirm. 

FACTS

Appellant Thomas Edson and respondent Constance Tipler are the parents of a child born in January 1994.  In August 1996, the district court ordered appellant to pay respondent $430 per month in child support.  In September 1997, an administrative law judge increased appellant’s child-support obligation to $769 per month.   

            Late in September 2003, appellant was incarcerated.  In March 2004, appellant’s duties to provide ongoing child support, medical support, and child-care support were suspended.  Noting that respondent’s anticipated release date was December 2004, a child support magistrate set a review hearing for February 8, 2005, to determine appellant’s income and ability to pay child support at that time. 

On February 2, 2005, appellant filed a motion to defer suspension of his driver’s and/or occupational license and an affidavit contesting, among other things, the amount he owed in arrears.  At the subsequent hearing, the county agreed not to suspend appellant’s driver’s license or occupational license and argued that appellant’s child-support obligation should be calculated based on his average reported income over the preceding five years.  Appellant disputed the county’s calculation because it included overtime pay in his earnings

At the time of the hearing, appellant was earning $33.25 per hour as a member of Minneapolis Pipefitters Local Union 539.  He received referrals through his hiring hall and worked each job referred to him for a fixed duration.  After a job was finished, appellant was laid off and would return to the hiring hall for a new placement; consequently, employment was not continuous.  Appellant testified that working 2,080 hours per year, the hours for full-time employment, is “unheard of” in his trade.  Appellant also explained that his gross income had increased because of overtime pay but that overtime pay for his union is not mandatory. 

In its order, the magistrate included appellant’s overtime earnings in his income available for child support purposes because it found that appellant did not present documentation to show that overtime was voluntary for all of his placements.  The magistrate declined to impute to appellant full-time earnings at $33.25 per hour but instead determined appellant’s income by averaging the preceding several years of reported income.  Using 1999 as the earliest year, because appellant had been incarcerated for part of 1998, the court listed the following annual incomes for appellant:  $56,841 in 1999; $62,653 in 2000; $60,848 in 2001; $29,197 in 2002.  The court also included in its calculation appellant’s earnings of $42,758.22 during the first three quarters of 2003.  Averaging his income from those five years and making the appropriate deductions, the court concluded that appellant’s average net annual income was $35,549.03.  Based on that annual income, the magistrate set appellant’s child support obligation at $740 per month, which was not a deviation from the guidelines.  See Minn. Stat. § 518.551, subd. 5(b) (2004).  Additionally, the magistrate declined to address appellant’s challenges to his arrears “as they were not properly plead and were not before the court at the review hearing.”  The district court subsequently affirmed the magistrate’s findings without opinion. 

D E C I S I O N

1.

            The district court has wide discretion in considering motions to modify child support, and a district court’s order on modification will be reversed only if it is against logic and the facts on record.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).  In appealing an order deciding a motion for review of a child support magistrate’s decision, this court reviews the order from which the appeal is taken, and, to the extent that the original decision is affirmed, it becomes the decision of the district court.  Kilpatrick v. Kilpatrick, 673 N.W.2d 528, 530 n.2 (Minn. App. 2004); see Minn. R. Gen. Pract. 376.03 (stating “[a] motion for review may be decided either by the child support magistrate who issued the decision and order or, at the request of any party, a district court judge”).   This court will reverse the district court’s decision on child support only when there is no evidentiary or logical justification for the amount.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  A determination of the amount of an obligor’s income for purposes of child support is a finding of fact and will not be altered on appeal unless clearly erroneous.  Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn. App. 2002).  In order to successfully challenge a district court’s findings of fact, the party challenging the findings “must show that despite viewing that evidence in the light most favorable to the trial court’s findings . . . the record still requires the definite and firm conviction that a mistake was made.”  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000). 

Appellant argues that the district court erred by including overtime pay in his net income available for child-support purposes.  On a motion for modification of child support, a court may not consider compensation received by a party for employment in excess of a 40-hour work week, if the party demonstrates, and the court finds, inter alia, that the overtime is voluntary.  Minn. Stat. § 518.64, subd. 2(c)(2) (2004).  The party seeking to exclude overtime wages from a calculation of child support has the burden of demonstrating that the wages qualify for the statutory exemption.  Id.  But the decision to exclude overtime compensation is ultimately within the district court’s discretion.  Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987) (“the [district] court may properly include . . . overtime income in the income used to calculate child support”); see also Justis v. Justis, 384 N.W.2d 885, 890-91 (Minn. App. 1986) (including overtime income for child-support calculations when it was a regular source of income), review denied (Minn. May 29, 1986).

Appellant contends that the district court clearly erred by finding that he failed to prove that his overtime was voluntary.  But his claim rests on the assertion that his working agreement with the union designates all overtime and double time as voluntary.  Appellant failed to cite any specific provision in support of his claim, and our review of the agreement did not find any provision stating that overtime work was voluntary.  Because appellant bears the burden of showing that his overtime qualifies under Minn. Stat. § 518.64, the court did not clearly err by finding that appellant failed to show that his overtime was voluntary and did not abuse its discretion by including appellant’s overtime pay when calculating his income available for child-support purposes.

            Appellant also argues that the method used by the district court to calculate appellant’s income was an abuse of discretion.  Failing to assign any specific error or cite any legal authority for his argument, appellant contends that the district court erred by averaging his income. 

Where a child-support obligor’s income fluctuates, an income averaging method takes into account fluctuations and more accurately measures income.  Veit v. Veit, 413 N.W.2d 601, 606 (Minn. App. 1987) (holding that when self-employed business income fluctuates, income averaging more accurately measures obligor’s net income); see also Minn. Stat. § 518.57, subd. 2 (2004) (addressing seasonal income).  Appellate courts have not set any standard time period for averaging income.  See, e.g., Veit, 413 N.W.2d at 606 (three-and-a-half years); Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 363 (Minn. App. 1987) (five years), review denied (Minn. Oct. 28, 1987).  And an inclusion of an unusually good or bad year in the time frame is not necessarily erroneous.  See Veit, 413 N.W.2d at 606 (holding that trial court did not err in including “financially disastrous year” in calculating obligor’s net monthly income).

Appellant fails to demonstrate how the district court’s five-year average calculation was clearly erroneous.  Given the nature of appellant’s work, in that his hours can vary greatly from week to week, income-averaging is notably appropriate to measure his income.  Id.  And appellant offers no alternative method of calculating his income.  The court did not abuse its discretion by applying the income-averaging method to determine appellant’s income available for child-support purposes.

Appellant also briefly contends that the district court failed to consider the needs of his child when determining his child-support obligation.  But appellant fails to specify which needs the court should have considered.  And he fails to indicate what evidence in the record would have allowed findings other than those made by the district court.  

2.

Appellant argues that the district court erred by declining to address the arrearages arguments set out in his February 2, 2005 affidavit.  Motion practice in family court is governed by Minn. R. Gen. Pract. 303.03.  New issues raised in a motion by a responding party must be served on opposing counsel and filed with the court administrator at least ten days prior to the hearing.  Id. at 303.03(a)(2).  Responsive memoranda and affidavits must be filed and served at least five days before a hearing on the motion.  Id. at 303.03(a)(3).  If a party fails to comply with the rule, then “[t]he court, in its discretion, may refuse to permit oral argument by the party not filing the required documents, may consider the matter unopposed, . . . or may take other appropriate action.”  Id. at 303.03(b).  The district court has discretion to ignore late-filed affidavits.  Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987).

Although appellant had notice of the February 8, 2005 review hearing for eleven months, he did not file his affidavit contesting his arrears until February 2, 2005.  As a result, the court declined to address the argument in his affidavit because it was not properly pleaded and was not before the court at the previous review hearing. 

The record supports the district court’s decision.  At the March 2004 hearing, the magistrate did not address the calculation of appellant’s arrears.  And when the magistrate scheduled the February 2005 hearing, she explicitly stated that the purpose of the hearing was to determine appellant’s income and ability to provide child support.  Thus, appellant’s affidavit challenging arrears calculations raised a new issue.  Accordingly, that affidavit should have been served and filed at least ten days before the hearing.  Minn. R. Gen. Pract. 303.03(a)(2).  But appellant filed the affidavit on February 2, 2005, less than ten days before the February 8 hearing.  Therefore, the district court did not abuse its discretion by refusing to consider the affidavit. 

            Affirmed.