This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-1608

C9-96-2053

In Re the Marriage of:

Lynn Louise Sloat, f/k/a O'Keefe, petitioner,

Respondent,

vs.

Thomas S. O'Keefe,

Appellant.

Filed April 22, 1997

Affirmed in part, reversed in part, and remanded

Willis, Judge

Hennepin County District Court

File No. 119036

Michael A. Feist, 654 Capital Centre, 386 North Wabasha Street, St. Paul, MN 55102 (for Respondent)

Thomas S. O'Keefe, 12664 Emmer Place, Apple Valley, MN 55124 (Pro Se Appellant)

Considered and decided by Kalitowski, Presiding Judge, Willis, Judge, and Mansur, Judge.[*]

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Thomas O'Keefe appeals from the district court order, arguing that the district court erred in (1) determining that his oldest child, Maureen O'Keefe, was emancipated on January 12, 1995, (2) calculating O'Keefe's income to include a note forgiven by his employer, (3) denying his request for a downward deviation from the child support guidelines, and (4) awarding attorney fees to respondent. We affirm in part, reverse in part, and remand.

FACTS

O'Keefe and respondent Lynn Sloat were divorced in 1987. Sloat was awarded sole physical custody of their two children Maureen, born January 12, 1977, and Conor, born November 13, 1980. On April 16, 1993, the district court transferred physical custody of Maureen to O'Keefe and ordered O'Keefe to pay ongoing child support of $166.35 per month to Sloat for Conor.

Although O'Keefe was awarded physical custody of Maureen, Maureen has not lived with either parent since 1994. Maureen currently lives with the father of her infant child and his parents. O'Keefe provided evidence that he gave a few checks to Maureen in 1995, but there is no evidence that he has consistently contributed to her support since 1994.

In 1995, at the age of 18, Maureen enrolled in an adult education program at the Lakeville Adult Learning Center, but participated in the program only for a total of 20.25 hours during the entire calendar year.

During 1995, O'Keefe was employed as a commissioned stock broker. His 1995 W-2 wage and tax statement reflects gross compensation of $75,387.84.

On February 1, 1995, Sloat, claiming that Maureen was emancipated, filed a motion to increase her child support award to an amount consistent with the child support guidelines for the parties' younger child, Conor. A family court referee found that an evidentiary hearing on the matter was necessary and referred the matter to the district court. The parties agreed to proceed with a review hearing to address when Maureen was emancipated and the issues of child support and attorney fees.

At the district court hearing, the parties stipulated that Maureen was emancipated on January 1, 1996, but they continued to contest her status between February 1, 1995, and January 1, 1996. The district court concluded that Maureen was emancipated on "her 19th birthday, which date was January 12, 1995."[1] Accordingly, the court concluded that the parties' obligation to support Maureen terminated on that date.

The court thus determined that beginning February 1, 1995, O'Keefe was obligated to provide support for Conor without an offset for support for Maureen. The court found that O'Keefe's average net monthly income for 1995 was "approximately $3,755.46" and his average net monthly income for 1996 was "approximately $3,559.46." The court ordered O'Keefe to pay guideline support for Conor in the amount of $938.87 per month for the period between February 1, 1995, and December 31, 1995, and $889.87 per month thereafter.

The district court rejected O'Keefe's argument that a note forgiven by his employer was not income to him in 1995. Finding that O'Keefe unreasonably contributed to the length and expense of the proceeding, the district court awarded $2000 in attorney fees to Sloat. This appeal followed.

D E C I S I O N

I. Emancipation

The parties' judgment and decree provides that the obligation for child support for Maureen terminates when "Maureen reaches her age of majority or completes her secondary education, whichever occurs later, but in no event beyond her 20th birthday, or until such time as said child becomes emancipated, self-supporting, joins the armed forces, marries or dies, whichever event shall first occur."

O'Keefe argues that the district court erred in determining that Maureen was emancipated on January 12, 1995, which was her 18th birthday. O'Keefe contends that because during 1995 he supported Maureen financially and she was under 20 years of age and still attending secondary school, she was not emancipated until January 1, 1996.

In determining when a child has become emancipated, a court will consider whether the parent has relinquished control and authority over the child and the degree to which the parent-child relationship has been severed. Cummins v. Redman, 312 Minn. 237, 240, 251 N.W.2d 343, 345 (1977). Whether an individual is emancipated depends on the facts and circumstances of each case. In re Fiihr, 289 Minn. 322, 327, 184 N.W.2d 22, 25 (1971).

A district court's findings of fact will not be set aside unless they are clearly erroneous. Minn. R. Civ. P. 52.01. A reviewing court must give due regard to the district court's opportunity to judge the credibility of the witnesses. Id.

The district court found that: (1) Maureen has not lived with either of her parents since 1994; (2) O'Keefe has not supported Maureen financially since 1994 because the few checks he gave her after 1994 were gifts; and (3) Maureen's participation in the program at Lakeville Adult Learning Center for 20.25 hours during all of 1995 did not amount to attending secondary school. The district court's findings are supported by the record and are not clearly erroneous.

Because after January 12, 1995, Maureen was no longer a "child" within the statutory definition[2] and because the record shows that by that date both parents had relinquished control and authority over Maureen and there was a severance of the parent-child relationship, the district court did not err in determining that Maureen was emancipated on January 12, 1995, her 18th birthday.

II. Calculation of Income

O'Keefe argues that the district court erred in calculating his income for the purpose of his child support obligation to include a one-time payment from his employer. O'Keefe asserts that the district court should not have included a $27,471.93 item listed as "note forgiven" on his 1995 pay stubs because it was the forgiveness of a loan made to him by his employer. The note that was forgiven by O'Keefe's employer was reported as income on O'Keefe's 1995 W-2 statement and was the equivalent of a bonus to O'Keefe.

The district court has broad discretion in determining child support obligations and will not be reversed unless it abuses that discretion. Novak v. Novak, 406 N.W.2d 64, 67 (Minn. App. 1987), review denied (Minn. July 22, 1987). For the purpose of determining child support, "income" is defined as "any form of periodic payment to an individual." Minn. Stat. § 518.54, subd. 6 (1996). "Bonuses which provide a dependable source of income may properly be included in calculation of future income." Lynch v. Lynch, 411 N.W.2d 263, 266 (Minn. App.1987), review denied (Minn. Oct. 30, 1987). Where a bonus is not guaranteed and is variable, however, it is not appropriate to use it in calculating income. Haasken v. Haasken, 396 N.W.2d 253, 261 (Minn. App. 1986). Where a parent receives bonuses that are not regular enough to be included in the calculation of income, a court may set support according to the parent's income and separately require the parent to pay a percentage of bonuses if and when received. Novak, 406 N.W.2d at 68.

The district court here abused its discretion in including O'Keefe's bonus in its calculation of his future income without determining whether it provides a dependable source of income. We remand to the district court for a determination of that issue. If the district court determines the bonus provides a dependable source of income, it is properly included in the calculation of O'Keefe's future income for purposes of child support. If it is not a dependable source of income, the district court should determine whether it is appropriate to order O'Keefe to pay a percentage of this and any future bonuses in addition to child support payments based on his regular income.

Appellant also argues that the district court erred in not allowing him to take an eight percent 401(k) deduction in calculating his net monthly income. We disagree.

In a prior order the district court calculated appellant's "reasonable pension deductions" to be five to six percent. The district court here permitted a six percent pension deduction in calculating O'Keefe's income. The district court found that O'Keefe's reasonable pension deductions for 1995 were "approximately $4,523.27." O'Keefe presented no evidence that would justify allowance of an eight percent 401(k) deduction. Absent a showing by O'Keefe that a six percent pension deduction is unreasonable, the district court's use of that deduction in calculating O'Keefe's income was not error.

III. Downward Deviation

O'Keefe argues that the district court erred in denying his request for a downward deviation from the child support guidelines. O'Keefe contends that a deviation is appropriate here because (1) Sloat's income is substantially greater than his, (2) Sloat claims Conor as a dependent for income tax purposes, (3) O'Keefe's current wife is unemployed, (4) O'Keefe is in danger of losing his homestead, and (5) there is no evidence that Conor would suffer from a reduced award.

The child support guidelines "are a rebuttable presumption and shall be used in all cases when establishing or modifying child support." Minn. Stat. § 518.551, subd. 5(i) (1996). A party requesting a deviation from the guidelines must support the request with evidence regarding (1) the parties' financial situations, (2) the child's needs, (3) the standard of living the child would have enjoyed had the marriage not been dissolved, (4) which parent receives the income taxation dependency exemption, and (5) the parents' debts. Minn. Stat. § 518.551, subd. 5(c) (1996).

O'Keefe has not presented sufficient evidence to rebut the presumption of guideline child support. His argument concerning the disparity between the parties' incomes is without significance because a "child is entitled to enjoy the benefits of the income of both parents." County of Nicollett v. Haakenson, 497 N.W.2d 611, 615 (Minn. App. 1993). Also, although O'Keefe argues that his financial situation has deteriorated because of his current wife's unemployment, he does not claim he is unable to afford guideline child support for Conor.

The district court did not abuse its discretion in denying O'Keefe's request for a downward deviation from the child support guidelines.

IV. Attorney Fees

O'Keefe argues that the district court abused its discretion in ordering him to pay attorney fees of $2000 to Sloat.

A district court may award attorney fees "against a party who unreasonably contributes to the length or expense of the proceeding." Minn. Stat. § 518.14, subd. 1 (1996). A court may award such attorney fees "regardless of the relative financial resources of the parties." Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991). The award of attorney fees is within the district court's discretion, and this court will not disturb the award unless the district court abused that discretion. Id.

The district court found that

[O'Keefe] has unreasonably contributed to the length and expense of this proceeding by failure to timely and fully respond to discovery requests. [O'Keefe] has also unreasonably contributed to the length and expense of this proceeding by continuing to advance the argument that the party's oldest child, Maureen, was not emancipated and dependent upon him for her support when that argument was not well-founded in fact, and was, in this Court's opinion, specious.

The record supports the district court's finding. The district court did not, therefore, abuse its discretion in the award of attorney fees.

V. Motions To Strike

Sloat and O'Keefe brought various motions to strike portions of each other's submissions to this court. Sloat seeks to have this court strike portions of O'Keefe's reply brief, including Maureen's affidavit dated November 29, 1996, and references to Maureen's inability to support herself due to a physical or mental condition. Because these matters were not before the district court, and are, therefore, not part of the record on appeal, we grant Sloat's motion. See Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987) (concluding that court cannot base its decision on matters outside record on appeal and matters not part of record must be stricken). Similarly, because O'Keefe's affidavit dated February 12, 1997, refers to matters outside the record, we grant Sloat's motion to strike the affidavit. See id.

O'Keefe moved to strike a letter attached to Sloat's motion to strike portions of O'Keefe's reply brief. Because the letter was not before the district court, the motion is granted. See Mitterhauser, 399 N.W.2d at 667. Further, we note that the letter does not pertain to the issues raised in this appeal.

VI. Appellate Attorney Fees

Sloat seeks attorney fees under Minn. Stat. § 549.21, subd. 2 (1996), for sums incurred on appeal, including attorney fees accrued in conjunction with her motions to strike. We decline to make such an award of attorney fees because the issues raised on appeal were not frivolous or asserted in bad faith and because Sloat has not demonstrated an inability to pay her fees. See id. (providing that attorney fees may be awarded on appeal where the appeal was frivolous, asserted in bad faith, or costly to the other party).

Affirmed in part, reversed in part, and remanded.

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

[ ]1The court erred regarding Maureen's age because January 12, 1995, was her 18th birthday, not her 19th, but the error has no impact on our analysis. Cf. Minn. R. Civ. P. 61 (providing that courts must disregard error not affecting substantial rights of parties).

[ ]2Minn. Stat. § 518.54, subd. 2 (1996), defines "child" as

an individual under 18 years of age, an individual under 20 who is still attending secondary school, or an individual who, by reason of physical or mental condition, is incapable of self-support.