This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-875

 

 

County of Nicollet,

Respondent,

 

vs.

 

Jacquelyn Ann Pollock, n/k/a Jacquelyn Ann Miller,

defendant/obligee,

Respondent,

 

Jerry Joseph Duwenhoegger,

defendant/obligor,

Appellant.

 

 

Filed May 22, 2007

Affirmed; motion granted

Halbrooks, Judge

 

 

Nicollet County District Court

File No. 52-F2-97-050001

 

 

Michael K. Riley, Sr., Nicollet County Attorney, Kenneth R. White, Michelle Zehnder Fischer, Assistant County Attorneys, 326 South Minnesota Avenue, P.O. Box 360, St. Peter, MN 56082 (for respondent Nicollet County)

 

Jerry Joseph Duwenhoegger, Sr., OID# 201857, 970 Pickett Street North, Bayport, MN 55003 (pro se appellant)

 

 

            Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            On appeal from the district court’s order modifying his monthly child-support obligation, pro se appellant argues that (1) the record does not support the district court’s findings of fact, the findings were inadequate, and the district court failed to adequately consider appellant’s lack of changed circumstances and incarceration, which makes the obligation excessive; (2) the modification deprives appellant of numerous constitutional rights; and (3) the needs of appellant’s other children were not considered in calculating his support obligation.  Respondent Nicollet County moves to strike portions of appellant’s brief and appendix that it claims were not before the district court.  We affirm the district court’s decision and grant the motion to strike.

FACTS

            Appellant Jerry Joseph Duwenhoegger and respondent Jacquelyn Ann Pollock, n/k/a Jacquelyn Ann Miller, are the parents of a child who was born on July 1, 1992.  Appellant’s child-support obligation was suspended on November 6, 1998, based on appellant’s incarceration in Minnesota Correctional Facility (MCF) – Stillwater and lack of income.  As of November 17, 2005, appellant’s child-support arrearage, including interest, totaled $2,607.37.  Appellant subsequently began working in prison, earning an average monthly gross income of $60.  Respondent Nicollet County thus sought to reimpose a monthly child-support obligation of $30 a month.  Appellant opposed the county’s motion because he contended that he was not earning as much as the county claimed and that his income was not even adequate to pay for his hygiene products, writing materials, and postage.  Such items, appellant claimed, cost an average of $111 a month, compared with a gross monthly income of $34 and a net monthly income of $27.07.

            The child-support magistrate (CSM) granted the county’s motion to re-establish child support at $30 per month.  The CSM found that appellant earns a gross income of approximately $60 per month by working 30 hours per week at $.50 per hour and “virtually all of [appellant’s] necessities are provided for him while incarcerated.”  The CSM did not find credible appellant’s claim that he needs $30 per month for postage expenses and stated that “his obligation to pay support exceeds his need for writing that number of letters.”

            Appellant sought review in the district court, where he provided statements showing bi‑weekly gross earnings between $20.50 and $28.50 and monthly expenses of $127.57.  In addition to claiming that he cannot live on his income that remains after the child-support withholding, appellant contended that his inability to afford envelopes and postage denies him access to the courts and infringes on the exercise of his religion.  Because he cannot afford mail or telephone contact, appellant asserted that the order constituted cruel and unusual punishment and that his rights under the First, Fourth, Fifth, and Eighth Amendments of the United States Constitution and the corresponding provisions in the Minnesota Constitution have been violated.

            Nicollet County responded that appellant was asserting arguments that were not made to the CSM and that appellant does not have to provide for his own basic shelter, unlike the average child-support obligor.  The county further noted that this child-support obligation is standard for an inmate. 

            The district court affirmed the CSM’s findings of fact, conclusions of law and order, finding that they are supported by the record.  Specifically, the district court found that the record supports the CSM’s finding that appellant earns $.50 per hour and works a 30-hour week.  While the district court determined that the record does not support the CSM’s statement that virtually all of appellant’s necessities are provided for him as an inmate, the district court stated that “the Constitution requires the state to provide for the basic needs of individuals who are in its custody.  This includes food, clothing, and stationery materials for legal correspondence.”  Furthermore, the district court found appellant’s claimed expenses to be unconvincing and unsupported, given that appellant failed to provide his prison-account information to verify his income and expenses.  Therefore, the district court “assume[d] that the majority of his earnings are available for the payment of child support.”  This appeal follows.

D E C I S I O N

            As a threshold matter, Nicollet County moves to strike portions of appellant’s appendices and brief because they contain information that was not in the record before the district court.  The record on appeal is limited to the materials provided to the district court.  Davis v. Davis, 631 N.W.2d 822, 826 (Minn. App. 2001) (citing Minn. R. Civ. App. P. 110.01).  Any document that is not a part of the district court record is therefore not a part of the appellate record, and this court has the power to strike it from the party’s brief.  Id. (citing Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993)).  The motion to strike includes appellant’s “Supplemental Appendix” in which he provided a compensation statement for 2005, bi-weekly earnings statements, information about poverty guidelines, and correctional policies.  None of these documents are in the district court record and are, therefore, stricken.  In addition, the motion seeks to strike specific pages in appellant’s appendix, including a copy of his in-forma-pauperis application related to this appeal and portions of his Texas divorce decree.  Because these items are not a part of the district court record, we grant Nicollet County’s motion to strike. 

            The district court has broad discretion to provide for the support of the parties’ children, but a district court abuses its discretion when it sets support in a manner that is against logic and the facts on record or misapplies the law.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984); Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn. App. 1998).  A determination of the obligor’s income to calculate 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).

            Minnesota law defines net income for purposes of calculating a child-support obligation as total monthly income less federal income tax, state income tax, social-security deductions, reasonable pension deductions, union dues, cost of dependent health-insurance coverage, cost of health or hospitalization coverage or an amount for actual medical expenses, and a child-support or maintenance order that is currently being paid.  Minn. Stat. § 518.551, subd. 5(b) (2004).[1]  By statute, “these expenses must be deducted to determine net income.”  Bartl v. Bartl, 497 N.W.2d 295, 299 (Minn. App. 1993).  The district court may reject or accept any net-income evidence presented.  See Nelson v. Nelson, 291 Minn. 496, 497, 189 N.W.2d 413, 415-16 (1971).  Prison income may be used to determine child support and whether or not there has been a substantial change in earnings.  Johnson v. O’Neill, 461 N.W.2d 507, 508 (Minn. App. 1990).  But increased child-support payments by a prisoner may not be supported by imputing income for room and board provided to prisoners by the state.  Franzen v. Borders, 521 N.W.2d 626, 630 (Minn. App. 1994).

            The record here contains a correctional-facility information response from MCF – Stillwater that indicates that appellant’s average gross monthly income is $60.  Appellant claims that prison deductions should be used to calculate his net income because the statutory deductions do not apply to prisoners.  But the legislature has the authority to establish deductions to determine net income, and the courts may not legislate new ones.  See Minn. Stat. § 645.16 (2006) (stating that legislative intent controls and “the letter of the law shall not be disregarded under the pretext of pursuing the spirit”). 

            Appellant claims that there has not been a substantial change in circumstances to justify modification.  “It is well established” that the district court may modify a child-support order in its “broad and sound discretion,” reversible for an abuse of discretion only by finding a “clearly erroneous conclusion that is against logic and the facts on record.”  Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (quotation omitted).  Courts may modify child-support payments based on the movant’s showing, among others things, a substantial increase or decrease in earnings, a substantial increase or decrease in the need of a party or child(ren), receipt of public assistance, or a change in the cost of living.  Minn. Stat. § 518.64, subds. 1-2 (2004).  Furthermore:

It is presumed that there has been a substantial change in circumstances . . . and the terms of a current support order shall be rebuttably presumed to be unreasonable and unfair if . . . the application of the child support guidelines . . . to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $50 per month higher or lower than the current support order.

 

Minn. Stat. § 518.64, subd. 2(b) (emphasis added).  The district court is required to make specific findings based on appropriate factors.  Moylan, 384 N.W.2d at 863, 865.  Here, the CSM reinstated appellant’s child-support obligation based on his employment in MCF – Stillwater.  Appellant’s monthly gross earnings of $60 is a substantial change from no income.  Appellant’s return to employment thus represents a substantial change in circumstances, justifying a child-support obligation.

            Appellant also argues that the district court failed to make the factual findings necessary to order immediate wage withholding.  But relevant law stated that “[e]very support order must address income withholding.  Whenever a support order is initially entered or modified, the full amount of the support order must be subject to income withholding from the income of the obligor.”  Minn. Stat. § 518.6111, subd. 3 (2004).  Therefore, the district court acted properly in ordering withholding appellant’s monthly child-support obligation from his income.

Finally, appellant argues that the income lost through child-support withholding prevents him from affording postage, which deprives him of his rights under the United States Constitution’s First, Fourth, Fifth, Eighth, and Fourteenth Amendments, and the Minnesota Constitution’s Bill of Rights, article I, sections 2, 5, 7, 8, 10, and 16, and that the district court failed to take into account prior child-support orders for his two other children.[2]  Nicollet County contends that these issues are not before this court because appellant failed to raise them before the CSM or the district court.  We agree.  This court will generally not consider matters not argued and considered in the court below.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Further, while appellant makes reference to these alleged violations, he has not briefed these issues with sufficient support.  See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (failing to address allegations because they were not supported with constitutional analysis or citation).  We, therefore, do not address them.

            Affirmed; motion granted.