This opinion will be unpublished and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

C1-98-687

In Re the Matter of:

Constance Blaeser,

f/k/a Constance Castonguay, petitioner,

Appellant,

vs.

Kevin Fern,

Respondent.

Filed November 24, 1998

Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. PA12756

Pamela L. Green, 2738 Winnetka Avenue North, New Hope, MN 55427 (for appellant)

William A. Blonigan, 3989 Central Avenue NE #600, Columbia Heights, MN 55421 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge, and Anderson, Judge.

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

KALITOWSKI, Judge

Appellant Constance Blaeser, f/k/a Constance Castonguay, challenges the district court's order modifying child support, contending the district court abused its discretion by finding respondent Kevin Fern's income tax records were an accurate representation of his non-cash resources. Appellant also challenges the court's: (1) award of medical expenses in lieu of an increase of monthly support; (2) denial of contribution to a special education program; and (3) denial of her request for attorney fees. We affirm.

D E C I S I O N

I.

An appellate court will not reverse a district court's determination of net income used to calculate child support if it has a reasonable basis in fact. Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987). The court may take into account the lifestyle of a sole business owner if income figures offered do not comport with the evidence of a person's lifestyle. Johnson v. Fritz, 406 N.W.2d 614, 616 (Minn. App. 1987) (finding father's lifestyle completely out of reach with what he purported to earn per month); see also Coady v. Jurek, 366 N.W.2d 715, 718 (Minn. App. 1985), review denied (Minn. June 27, 1985) (stating court can consider "cash flow" in addition to "paper income").

Blaeser contends the district court abused its discretion by accepting Fern's tax records as an accurate reflection of his non-cash resources. We disagree.

Appellant alleges that Fern makes substantially more income than his tax returns reflect. However, it is within the court's province to reject or accept the evidence presented, and in this case the court did not find Blaeser's calculations of Fern's income to be determinative. See Nelson v. Nelson, 291 Minn. 496, 497, 189 N.W.2d 413, 415 (1971) (stating that trial judge is evaluator of credibility and demeanor of parties). Further, the court did conclude Fern had unreported income based on evidence that Fern rarely deposited cash into his checking account although tipping is customary in the hair salon business.

We conclude the district court did not abuse its discretion in accepting Fern's tax records but, for purposes of calculating the amount of child support, adding an extra 15% to Fern's taxable income to cover unreported income.

II.

"A trial court's findings concerning allegations of fraud on the court must be upheld unless clearly erroneous." Sanborn v. Sanborn, 503 N.W.2d 499, 502 (Minn. App. 1993).

"[F]raud on the court must be an intentional course of material misrepresentation or non-disclosure, having the result of misleading the court and opposing counsel and making the property settlement grossly unfair."

Maranda v. Maranda, 449 N.W.2d 158, 165 (Minn. 1989).

Blaeser argues the district court erred in not finding that Fern has engaged in a consistent pattern of intentional misrepresentation of his income and assets as a means of securing a lower child support payment. We disagree. Although the evidence demonstrates some discrepancies in Fern's testimony, we cannot say the district court abused its discretion in finding the discrepancies did not rise to the level of fraud on the court.

III.

Blaeser contends the court abused its discretion by: (1) refusing to accept Blaeser's calculations of Fern's income but instead ordering Fern to pay medical expenses for the minor child in lieu of additional child support; and (2) refusing to order Fern to pay special education costs but instead ordering Blaeser to provide Fern with additional information on the special education program. We disagree.

The district court has broad discretion to provide for the support of the parties' children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). This court will not reverse the district court's decision on child support unless that decision was clearly erroneous. Id. at 51. Here, the district court was within its discretion not to accept Blaeser's calculations of Fern's income. Blaeser failed to advance any other evidence in support of her argument. Moreover, ordering Blaeser to provide additional information on the special education program was reasonable. We conclude the district court's decisions were not clearly erroneous.

IV.

An award of attorney fees under Minn. Stat. § 518.14 (1996) "rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion." Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987). We conclude Blaeser has failed to establish a basis for awarding attorney fees.

Affirmed.