In Re the Marriage of: Carmen C. Redmond, petitioner, Respondent, vs. Roger W. Redmond, Sr., Appellant. C4-99-676, Court of Appeals Unpublished, October 12, 1999.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C4-99-676

In Re the Marriage of:
Carmen C. Redmond, petitioner,
Respondent,

vs.

Roger W. Redmond, Sr.,
Appellant.

Filed October 12, 1999
Affirmed in part and remanded in part
Toussaint, Chief Judge

Hennepin County District Court
File No. 191958

Sandra Kay Kensy, 510 Marquette Avenue South, Suite 200, Minneapolis, MN 55402 (for respondent)

William L. Lubov, Lubov & Associates, 820 North Lilac Drive, Suite 210, Golden Valley, MN 55422 (for appellant)

Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Halbrooks, Judge.

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

TOUSSAINT, Chief Judge

Appellant Roger Redmond challenges the district court's denial of his motion to reduce his child support and maintenance obligations, arguing that the district court should not have (a) averaged his income; and (b) found that even without averaging, his motions should be denied. Respondent Carmen Redmond challenges the denial of her motion for attorney fees. We affirm in part and remand for the district court to review its temporary reduction of appellant's maintenance obligation.

DECISION

Appellant alleges the district court should not have averaged his income because the requirements for imputing income to him were not satisfied. But imputing income is not the same as averaging income. Compare Minn. Stat. § 518.551, subd. 5b(d) (defining imputation of income for support purposes as estimate of obligor's earning ability based on statutory factors) with Veit v. Veit, 413 N.W.2d 601, 606 (Minn. App. 1987) (affirming finding of income arrived at by averaging actual earnings of obligor whose income fluctuated). Here, the district court neither said it was imputing income nor performed the analysis for imputing income. It explicitly said it was averaging appellant's income. Thus, appellant's arguments regarding the imputation of income are misplaced and we do not address them.

District courts have broad discretion to address issues related to maintenance and support. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Here, (a) the dissolution judgment notes appellant's income varied before the dissolution due to his bonus income; (b) the variable nature of appellant's income was referred to in the non-statutory standard for modifying maintenance to which the parties stipulated; (c) since the dissolution, appellant has had multiple jobs with disparate incomes and bonus structures; and (d) the judgment provision addressing modification suggests income averaging in some circumstances because it requires appellant's income to include "all severance pay and disability benefits * * * whether received in a lump sum, deferred, or paid over time." Under the circumstances, the district court did not abuse its discretion by averaging appellant's income. Compare Veit, 413 N.W.2d at 606 (affirming use of income averaging where obligor's income fluctuated annually) with Sefkow v. Sefkow, 372 N.W.2d 37, 48 (Minn. App. 1985) (reversing use of income averaging where obligor's income increased annually), remanded on other grounds, 374 N.W.2d 733 (Minn. 1985).

II.

Appellant alleges the district court misapplied the statutory standard for modifying support when it found that even if his income were not averaged, he still failed to show substantially reduced income justifying reduction of his support obligation. Whether to modify support is discretionary with the district court. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). A district court's findings of fact are not set aside unless clearly erroneous. Minn. R. Civ. P. 52.01.

A support obligation may be modified if the moving party shows substantially changed circumstances rendering the existing obligation unreasonable and unfair. Minn. Stat. § 518.64, subd. 2 (1998). There is a presumption of substantially changed circumstances and a rebuttable presumption that an existing obligation is unreasonable and unfair if applying the guidelines to the parties' current circumstances would produce an obligation at least 20% and $50 different from the existing obligation. Minn. Stat. § 518.64, subd. 2(b)(1). Here, the appellant's own calculations show that applying the guidelines to his current circumstances would produce an obligation less than 20% different from his existing obligation. And, appellant stipulated to his current above-guideline obligation. Appellant has not shown that the district court abused its discretion by denying his motion for reduced support. Cf. Fifield v. Fifield, 360 N.W.2d 673, 675 (Minn. App. 1985) (noting deference given stipulations and affirming reduction of stipulated above-guideline support obligation to level that still exceeded guidelines obligation).

III.

Appellant argues that a correct application of the stipulated standard for modifying maintenance would result in reduction of his maintenance obligation. Whether to modify a stipulated maintenance obligation is discretionary with the district court. Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981). Under the parties' stipulated standard for modifying maintenance (a) a motion to reduce maintenance "may only be based upon a substantial decrease in [appellant's] gross income from all sources and [certain other facts];" (b) "all severance pay and disability benefits shall be considered income for spousal maintenance and child support purposes whether received in a lump sum, deferred, or paid over time;" and (c) for purposes of determining whether circumstances have substantially changed, the judgment sets forth the parties' "current financial situations, including [appellant's] income history and fluctuation of bonuses * * * ."

Appellant asserts that, despite the district court's finding to the contrary, his 1999 income will be substantially less than the income he had when the dissolution judgment was entered. Appellant's argument (a) ignores the income averaging the district court performed, which shows appellant's average income has increased; (b) assumes an income amount that omits certain possible "finders fees" and up to $24,000 he will earn for serving as a director of certain businesses; and (c) ignores the fact that he has yet to try to recover substantial amounts a former employer may owe him. Because these facts suggest appellant's estimate of his 1999 income understates his actual income, we cannot say that the district court clearly erred in finding that appellant's actual income was not substantially less than the income figure in the judgment.

IV.

To ameliorate cash-flow-related financial problems for appellant, the district court reduced his maintenance obligation for 12 months. Respondent alleges this is an abuse of discretion because the district court ruled appellant did not satisfy the maintenance-modification standard. We remand this apparently inconsistent aspect of the district court's ruling. On remand, the district court should: (1) review the relevant financial facts and appellant's need for temporary relief from his obligations; and (2) then resolve the matter equitably and prudently in a manner consistent with the record and the law. Cf. Anderson v. Anderson, 421 N.W.2d 410, 412 (Minn. App. 1988) (affirming temporary reduction of support obligation where, among other things, difference between reduced payment and the actual obligation accrued for later payment and the temporary reduction was "equitable and prudent" under circumstances). The district court will make appropriate findings.

On remand, whether to reopen the record shall be discretionary with the district court.

Citing the provision in Minn. Stat. § 518.14, subd. 1 (1998), allowing need-based attorney fees, respondent challenges the district court's denial of her motion for attorney fees. See Minn. Stat. § 518.14, subd. 1 (stating court "shall" award fees if recipient needs them for good faith assertion of rights and payor can pay them). While the district court refused to award respondent conduct-based fees and sanctions, it did not address need-based fees. Therefore, the issue of attorney fees on the theory that respondent needs those fees is not properly before this court, and we do not address it. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating appellate courts address only issues presented to and considered by district court and, on appeal, parties are not allowed to raise new theory to argue issue raised in district court); Frank v. Illinois Farmers Ins. Co., 336 N.W.2d 307, 311 (Minn. 1983) (holding, where district court failed to address claim and party who raised it did not seek amended findings, there was nothing for supreme court to review).

Affirmed in part and remanded in part.