Opinion
No. C3-96-685.
Filed September 3, 1996.
Appeal from the District Court, Ramsey County, File No. F48726345.
Steven A. Sicheneder, Tennis, Sicheneder and Collins, P.A., (for Appellant)
Kathryn A. Graves, Katz Manka, Ltd., (for Respondent)
Considered and decided by Huspeni, Presiding Judge, Randall, Judge, and Amundson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
Appellant challenges the district court's order modifying his child support obligation and awarding attorney fees to respondent. Because the district court correctly concluded that appellant's overtime should not be deducted from his income and did not abuse its discretion in using appellant's 1993 tax returns and in awarding respondent a portion of her fees and costs, we affirm; because we hold that it was a clerical error to omit the deduction of appellant's union dues and medical insurance premiums from his income, we modify the findings on his income and the child support calculation.
FACTS
Appellant DuWayne Johnson and respondent Barbara Johnson were married in 1978. Their two daughters, now aged 14 and 11, have been in respondent's custody since the parties separated in 1987. During and after the marriage, appellant worked as a conductor with the Chicago and Northwestern Transportation Company. Overtime (time-and-a-half) pay for conductors is calculated not by hours in excess of 40 per week but by hours in excess of 8 per day: some routes require 12- or 14-hour days. Because of his seniority, appellant can choose routes that involve fewer straight time hours and more overtime hours.
At the time of the dissolution in 1989, the parties stipulated to child support of $500 per month based on appellant's then monthly income of $1,670. Appellant was required to provide verification of his income by submitting his pay stubs every 90 days and his annual income tax statements. He provided no verification of his income after June 1990. In 1991 appellant's net monthly income averaged $3,512; in 1992 his net monthly income for the nine months he worked averaged $3,557; in 1993 his net monthly income averaged $3,473.
Appellant was out of work for three months in 1992 to participate in chemical dependency treatment.
Respondent moved for modification of child support in 1994, arguing an increase in appellant's income and increased expenses for the children. She sought to have the increase made retroactive to June 1990 and also sought child support arrearages. The family court referee granted her motion in all respects. Appellant challenged the referee's decision in this court, which remanded for determinations of whether appellant was working more overtime than he had worked during the marriage and whether there had been a change in respondent's circumstances to warrant a modification. Johnson v. Johnson , 533 N.W.2d 859 (Minn.App. 1995).
On remand, the family court referee found that appellant was not working significantly more overtime than he had worked during the marriage and that respondent had established a change in circumstances. The district court ordered that the increase be retroactive to August 1991, granted respondent costs and attorney fees, and entered judgment on past child support in the amount of $9,653 for the period from August 1, 1991, to October 31, 1994. Appellant now challenges the findings, the order for modification, the award of attorney fees, and the judgment awarding past child support; respondent seeks attorney fees on appeal.
DECISION
Modification of child support is within the trial court's discretion and will not be reversed absent an abuse of discretion. Johnson , 533 N.W.2d at 862 (citing Kuronen v. Kuronen , 499 N.W.2d 51, 53 (Minn.App. 1993), review denied (Minn. June 22, 1993)).
1. Appellant's Overtime
Minn. Stat. § 518.64, subd. 2(b)(2) (1994) provides that:
On a motion for modification of support, the court * * * shall not consider compensation received by a party for employment in excess of a 40-hour work week, provided that the party demonstrates, and the court finds, that:
(i) the excess employment began after entry of the existing support order;
(ii) the excess employment is voluntary and not a condition of employment;
(iii) the excess employment is in the nature of additional, part-time employment, or overtime employment compensable by the hour or fractions of an hour.
Johnson interpreted the statute:
[W]hen a support obligor shows that he or she is working more overtime hours than he or she worked during the marriage, the court should prorate the overtime income and view the extra post-dissolution overtime as excludable in a modification proceeding.
Where the record shows that [appellant] is paid an hourly wage and that his current excess income far exceeds the amount of excess employment he performed for the same job during the parties' marriage, the referee should have determined whether [appellant] began a portion of the excess employment after entry of the existing support order and satisfied the requirement set forth in Minn. Stat. § 518.64, subd. 2(b)(2)(i). We remand with directions that the district court review the totality of the circumstances here and determine what portion of [appellant]'s overtime exceeds the level of overtime he worked during the parties' marriage and whether that excess income meets other factors for exclusion under Minn. Stat. § 518.64, subd. 2(b)(2).
Johnson , 533 N.W.2d at 864. In establishing support, the court looks back two years prior to the dissolution to consider the obligor's work patterns. Id . at 863.
The district court found on remand that the prorated "overtime" in appellant's pre-dissolution earnings (1986-1987) did not vary significantly from the overtime in his post-dissolution earnings (1993). The findings as to appellant's 1986 and 1987 overtime earnings are based on his Employee Earnings Statements; the findings as to his 1993 overtime earnings are based on appellant's own statement. Neither the district court's findings nor its conclusion that appellant's 1993 overtime was not deductible from his 1993 income was an abuse of discretion.
We see no merit in appellant's unsupported suggestion that his overtime be computed by comparing his claimed overtime hours worked to what his overtime would have been if he had worked a regular 8-hour day, 40-hour week job.
2. Appellant's Net Income
Appellant raises three objections to the district court's findings as to his net income. First, he argues that his 1994 income, not his 1993 income, should have been used.
While we address this issue, we note that appellant's right to raise it is dubious. See Loo v. Loo, 520 N.W.2d 740, 744 n. 1 (Minn. 1994) (law of the case applies where an appellate court has ruled on a legal issue and has remanded the case to a lower court for further proceedings).
Such a calculation would result in an understatement of [appellant]'s monthly income because the year-to-date [1994] totals do not include any income from January to April 19 when [appellant] was on disability.
* * * Under these circumstances, the referee's use of [appellant]'s 1993 tax returns to establish current net income for 1994 was not error.
Johnson , 533 N.W.2d at 864. At the remand hearing, respondent's counsel noted that "The Court of Appeals in its decision said it was appropriate for the Trial Court to use [appellant's] 1993 income, and we are willing to stipulate to this point." The court asked appellant's counsel, "Position concerning the stipulation?" and appellant's counsel answered, "That is fine." Given this court's holding that the 1993 income was appropriately used and appellant's stipulation to its use, we see no abuse of discretion in the use of the 1993 income.
Second, appellant argues that the tax tables, not his tax returns, should have been used to determine his net income. Appellant's significant tax refunds are not added to his income using the tax table method, but are added using the tax return method. "[I]t is * * * proper to compute net income by deducting amounts withheld and adding amounts refunded during a particular year." Lenz v. Wergin , 408 N.W.2d 873, 876 (Minn.App. 1987); see also Koury v. Koury , 410 N.W.2d 31, 32-33 (Minn.App. 1987); Tibbetts v. Tibbetts , 398 N.W.2d 16, 20 (Minn.App. 1986); Dinwiddie v. Dinwiddie , 379 N.W.2d 227, 229 (Minn.App. 1985) (all including tax refunds in setting child support award).
Again, we address this issue while noting that appellant may not be entitled to raise it now because he failed to raise it in the original proceeding, during the previous appeal, or on remand. This court may not consider issues not presented to and considered by the trial court; parties may not obtain review by raising the same issue under a different theory. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
While Minn. Stat. § 518.551, subd. 5(b) (Supp. 1995), notes that standard deductions apply and recommends the use of tax tables, there is no requirement that they be used, particularly when the result is to give an inaccurate picture of an individual's income. The district court did not abuse its discretion in using appellant's tax records rather than the tax tables to compute his net income.
Third, appellant challenges the district court's failure to deduct his union dues and medical insurance premiums from his net income pursuant to Minn. Stat. § 518.551, subd. 5(b). We agree that appellant is entitled to these deductions and note that union dues were originally deducted in the calculations of appellant's net income. Johnson, 533 N.W.2d at 864. We assume that the omission of $118.84 in monthly union dues and $9.95 in monthly medical insurance premiums from the deductions was a clerical error. Minn.R.Civ.P. 60.01 provides that a court may correct clerical errors at any time on its own initiative. We therefore deduct $128.79 from the $3,473.14 found by the district court to be appellant's net income, find that his monthly net income is actually $3,344.35, and hereby amend the district court order determining his child support to $1,003.30 per month ($3,344.35 x 30%).
We note that the record supports these figures: appellant's 1994 tax return lists annual union dues of $1,426 and his pay deposits reflect a monthly medical insurance deduction of $9.95.
Appellant also argues that the judgment of arrearages was excessive because of the district court's alleged errors in failing to deduct appellant's overtime and using his tax returns rather than the tax tables. Our holding that neither the inclusion of the overtime earnings nor the use of the tax returns was erroneous renders appellant's challenge to the amount of arrearages moot.
3. Attorney Fees
An award of attorney fees under Minn. Stat. § rests almost entirely within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. Katz v. Katz , 408 N.W.2d 835, 840 (Minn. 1987). Minn. Stat. § (1994) provides that the court may award attorney fees if the party from whom fees are sought has the means to pay them and the party to whom they are awarded does not have the means to pay, and gives the court discretion to award "additional fees, costs and disbursements against a party who unreasonably contributes to the length or expense of the proceeding." The referee considered these factors and found that even with an increased level of child support, respondent is unable to pay attorney fees, that appellant has the ability to pay them, and that appellant's practice of not disclosing financial information necessary for the recalculation of child support caused this matter to be brought before the court.
Appellant asserts that he does not have the means to pay respondent's attorney fees and that respondent has sufficient income to pay them, but he does not support the assertion. He does not dispute the finding that his failure to disclose financial information caused the action to be brought. The district court's award of attorney fees was not an abuse of discretion.
4. Attorney Fees on Appeal
Respondent seeks an award of the attorney fees she incurred in responding to this appeal, pursuant to Minn. Stat. § By separate order, we award a portion of the fees on the grounds that while one of the issues raised by appellant had previously been decided by this court, another issue had not previously been mentioned to any court, and the records to support appellant's alleged overtime were not provided; appellant was entitled to appeal the failure to deduct his union dues and medical insurance premiums from his income.
In summary, we affirm as to the inclusion of appellant's overtime earnings, the use of his 1993 tax returns, and the award of attorney fees and costs; we modify by deducting appellant's union dues and medical insurance premiums from his income and recalculating his child support obligation, and we award respondent a part of her attorney fees on appeal.