This opinion will be unpublished and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

C2-96-1990

In re the Marriage of:

Mari Ruth Babin,

n/k/a/ Mari Ruth Arnette, petitioner,

Respondent,

vs.

Scott Frederick Babin,

Appellant.

Filed July 8, 1997

Affirmed as modified

Crippen, Judge

Scott County District Court

File No. 8412112

Rachel B. Rosen, 5001 West 80th St., Suite 745, Bloomington, MN, 55437 (for Appellant)

Anne Heimkes Tuttle, 206 Scott St., Shakopee, MN 55379 (for Respondent)

Considered and decided by Crippen, Presiding Judge, Willis, Judge and Schultz, Judge.[*]

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

Crippen, Judge

Appellant Scott Babin disputes an order retroactively modifying his child support obligation and requiring him to contribute to the unreimbursed medical and dental expenses for his child. Appellant argues that the administrative law judge erred in calculating his income and contends that the record does not establish cause for the retroactive modification. Except for modifications on the effective date for relief granted by the administrative judge, we affirm.

FACTS

Appellant and respondent Mari Arnette were married in 1981 and divorced in 1985. They have one child, age 13. Respondent has physical custody of the child and the parties share legal custody. The divorce judgment imposed upon appellant an on-going obligation to inform respondent of increases in his income and provided that when those increases were reported, the child support award "shall be increased in accordance with the Minnesota Child Support Guidelines." The parties stipulated to increases in child support in 1987 and 1990.

Respondent sought another increase in child support in 1995. Based on income data supplied by the Internal Revenue Service, the administrative law judge modified appellant's child support obligation, retroactive to January 1, 1991, and ordered him to contribute 50% of the costs of unreimbursed medical and dental expenses for his child.

D E C I S I O N

Modification of child support is within the trial forum's discretion, and a reviewing court will not reverse that decision absent an abuse of discretion. Hennessy v. Stelton, 302 Minn. 550, 550, 224 N.W.2d 926, 927 (1974); Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993), review denied (Minn. Jun. 22, 1993). This standard also applies to appellate review of an administrative law judge's order. Lee v. Lee, 459 N.W.2d 365, 368-69 (Minn. App. 1990) (applying abuse of discretion standard to order of administrative law judge), review denied (Minn. Oct. 18, 1990); See Minn. Stat. § 518.5511, subd. 4(h) (1996) (providing for appeal of administrative law judge's decision).

1. Findings for modification

Appellant argues that the judge's findings are insufficient to support her order retroactively modifying his child support obligation. Respondent contends, initially, that because the judgment and decree contemplated a change in support based on changes in appellant's income, it is unnecessary to view the proceeding as a "modification" of support. Although the judgment provides for the expectation of change in support, the language does not specify that the change will be automatic. The sufficiency of the judge's order must be measured against standards governing modification proceedings pursuant to Minn. Stat. § 518.64 (1996) (stating causes for modifying an order or judgment).

Minn. Stat. § 518.64 currently states a presumption that a substantial change in circumstances has occurred and a rebuttable presumption that the current support order is unreasonable and unfair when an obligor's changed income, when used in a child support guideline calculation, shows an obligation "that is at least 20 percent and at least $50 per month higher or lower than the current support order." Id., subd. 2(a); see Bock v. Bock, 506 N.W.2d 321, 324 (Minn. App. 1993) (stating that if obligor submits evidence to rebut the statutory presumption of unfairness, the court must make findings whether or not it modifies support). In addition, the judge can make a new guidelines calculation solely on the basis of the obligor's income if other considerations are not shown to affect the award. Minn. Stat. § 518.551, subd. 5(c) (1996) (demanding consideration of other factors), (i) (stating that guidelines calculations are a rebuttable presumption and mandating findings of fact only on the obligor's income and such other factors that significantly affect the award); see Rouland v. Thorson, 542 N.W.2d 681, 684 (Minn. App. 1996) (stating that where obligor failed to raise an issue to the administrative law judge regarding the children's needs, obligor waived the issue); Buntje v. Buntje, 511 N.W.2d 479, 481 (Minn. App. 1994) (holding that statutory presumption to follow guidelines calculation places on the party requesting a deviation the burden to show facts justifying a different award).

Applying the statutory guidelines to appellant's net monthly income triggered the statutory presumption that appellant's obligation could be modified. And because the only evidence appellant presented, either to rebut the presumption for change or to prompt a deviation from an ordinary guidelines calculation, was evidence of his own financial circumstances, the judge was not required, as appellant argues, to make further findings regarding the circumstances of respondent or the child.

2. Retroactive award

Generally, the court may order retroactive modification of child support only to the date of service of the motion to modify the existing support order. Minn. Stat. § 518.64, subd. 2(c). The statute permits modification effective earlier when "a significant physical or mental disability, a material misrepresentation of another party, or fraud upon the court precluded the party seeking modification from serving a motion." Id.

The judgment obligates appellant to inform respondent of increases in his income. Appellant has never voluntarily done so, even though his net monthly income increased from approximately $820 in 1985 to over $2,000 by 1992. The record adequately supports the judge's findings of these facts. But appellant asserts that his failure to disclose his salary increases was not "misrepresentation" and that the judge erred by failing to make express findings regarding misrepresentation. Appellant's argument is without merit. We have previously considered a child support obligor's failure to comply voluntarily with a dissolution decree order to produce financial records to be "misrepresentation" for purposes of retroactive modification of support. Johnson v. Johnson, 533 N.W.2d 859, 866 (Minn. App. 1995) (stating that misrepresentation is concealing or not disclosing facts that one has a duty to disclose and citing M.H. v. Caritas Family Servs., 488 N.W.2d 282, 288 (Minn. 1992)). The Johnson case is not, as appellant asserts, significantly distinguishable from the circumstances in the immediate matter.

The statutory presumption of cause for changing a support award was enacted effective August 1, 1991. 1991 Minn. Laws ch. 292, art. 5, § 79 (amending Minn. Stat. § 518.64 to add presumption). Before that time, an increase in the obligor's income alone was insufficient to support a modification. See Moylan v. Moylan, 384 N.W.2d 859, 864-65 (Minn. 1986) (requiring the court to make express findings on statutory factors, including the needs of the child, before modifying a support order). Because modification of appellant's support obligation for the six-month period from January 1, 1991, to July 31, 1991, was inappropriate without Moylan findings, we modify the order to make the altered award effective on August 1, 1991.

3. Income calculation

Appellant challenges the judge's calculation of his net income for the purposes of considering a modification and setting support, alleging that it was error to include his overtime pay and not exclude his union dues.

Generally, a court does not consider compensation received by a party for employment in excess of a 40-hour work week as income for the purposes of child support if the excess employment began after entry of the existing support order. Minn. Stat. § 518.64, subd. 2(b)(2)(i). But the party seeking to exclude overtime wages from a calculation of child support has the burden to demonstrate that the wages qualify for the statutory exemption. Id., subd. 2(b) ("[T]he court * * * shall not consider compensation received by a party in excess of a 40-hour work week, provided that the party demonstrates, and the court finds [the party has met a statutory condition.]"). Similarly, "net income" does not include union dues. See Minn. Stat. § 518.64, subd. 2(b)(1) (directing the court on a motion for modification, to apply § 518.551, subd. 5 (1996), which excludes union dues from "net income").

Although appellant testified that a portion of his wages was overtime, he never produced any evidence that this was true. The judge held the hearing record open for several weeks to permit an effort to obtain wage information from the Internal Revenue Service with appellant's authorization. The judge also allowed time for appellant to respond to the IRS information, and he failed to do so. Neither did he provide the court with any documentation regarding his union dues. Under these circumstances the judge did not err by relying on IRS-supplied income information as a basis for calculating child support.

4. Medical expenses

Appellant asserts that the judge failed to make adequate findings to support the requirement that he contribute 50% towards the costs of unreimbursed medical and dental expenses for his child, and he claims that the order is "unreasonable and unfair."

Courts are required, under certain circumstances, to order a child support obligee and obligor both to contribute to the cost of medical and dental expenses for their child. Minn. Stat. § 518.171, subd. 1(c), (d) (1996). The judge appropriately applied the provisions of this statute, but the judge erred in imposing this obligation on appellant retroactively to December 1, 1995. Section 518.171, subdivision 1, does not provide for the retroactive imposition of a medical support obligation. We modify the order to impose the obligation from the date the order was entered.

5. Fair hearing

Finally, appellant alleges that he was treated prejudicially in the child support modification hearing, where he appeared pro se, and that he was denied "a full opportunity to be heard." We have reviewed the hearing transcript and conclude that these allegations are not borne out by the record.

Affirmed as modified.

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