Opinion
No. C7-97-702.
Filed October 7, 1997.
Appeal from the District Court, Dakota County, File No. F09512646.
Roselyn J. Nordaune, Nordaune Friesen, (for appellant).
Jeannice M. Reding, Best Flanagan, P.L.L.P., (for respondent).
Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
This appeal is from a postdissolution order granting respondent's motion to increase child support and denying appellant's motion to appoint a visitation expediter. We affirm.
FACTS
The parties were married in 1987 and divorced in 1995. They have three minor children, currently ages nine, seven, and three. The dissolution judgment incorporated the parties' marital termination agreement regarding maintenance and child support. At the time of dissolution, appellant Mark Steven Horton was earning a net monthly income of $3,545.22, and his reasonable monthly expenses were $2,343. Respondent Laurel Lynn Horton, n/k/a Laurel Lynn Maki, was self-employed as a daycare provider. Her net monthly income was about $650, and her reasonable monthly expenses were about $2,800. The dissolution judgment set appellant's child support obligation at $1,250 per month and awarded respondent $600 per month in temporary maintenance until August 31, 1999.
The parties agree that the tax consequences of appellant's obligation to pay maintenance were not considered in determining appellant's net income. The parties also agree that appellant's voluntary 401(k) contribution was deducted from his gross income in determining his net income. Appellant states that at the time of dissolution, his 401(k) contribution rate was 4%. Respondent states that it was 3.5%. The record indicates that appellant's net monthly income was determined based on payroll records for 1995, which showed a 401(k) contribution rate of 2%. As of January 1, 1997, appellant increased his voluntary 401(k) contribution rate to 10%.
Just over one year after entry of the dissolution judgment, respondent filed a motion to increase appellant's child support obligation, and appellant filed a motion to appoint a visitation expediter. Respondent submitted a list of expenses showing that her monthly expenses had increased to $4,110. The major increase was from $20 to $330 per month in medical expenses due to unreimbursed medical bills incurred for breast cancer treatment. Also, her recreation expense increased from $75 per month to $150 per month, her food expense increased from $720 to $820 per month, and the payments on a personal loan owed to her father increased from $100 per month to $500 per month. Several other expenses each increased by $50 or less per month. Respondent stated in an affidavit that her significant other, who lived with her and the children, contributed $400 per month to pay for expenses attributable to him.
The district court found that appellant's net monthly income had increased to $4,434 and that his monthly living expenses had not changed. The court found that respondent was not earning any income because she was unable to work due to treatment for breast cancer and that her reasonable monthly living expenses for herself and the children had increased to $3,710. In determining respondent's expenses, the district court excluded the income and offset expenses attributable to respondent's significant other. The court found that a substantial change in circumstances had occurred justifying modification of appellant's child support obligation and increased appellant's monthly child support obligation to $1,552.
DECISION
1. Appellant argues that the district court erred in calculating his net income. We will affirm the district court's determination of net income for the purpose of calculating child support if it has a reasonable basis in fact. Strauch v. Strauch , 401 N.W.2d 444, 448 (Minn.App. 1987). In determining appellant's net income, the court considered the tax consequences of appellant's obligation to pay maintenance and allowed him "a reasonable voluntary pension deduction," which the parties agree was 3.5% of his gross income. See Minn. Stat. § 518.551, subd. 5 (1996) (in determining net monthly income for purposes of child support, federal and state income taxes and reasonable pension deductions shall be deducted from total monthly income).
Appellant argues that because the dissolution judgment did not account for the tax consequences of his spousal maintenance obligation in determining his net income, the district court erred in doing so for purposes of the modification motion. But neither the parties' marital termination agreement nor the dissolution judgment set forth any reason for not considering the tax consequences of appellant's spousal maintenance obligation. The prior proceeding therefore did not prevent the district court from considering the tax consequences of appellant's spousal maintenance obligation in determining his current net income. See Dinwiddie v. Dinwiddie , 379 N.W.2d 227, 229 (Minn.App. 1985) (if party receives inadequate support because of misunderstood tax liability, party can petition the trial court for modification of support).
Appellant also argues that the district court erred in considering the tax consequences of his maintenance obligation because the obligation and its tax benefits will end in 1999. He argues that when the tax benefits end, his child support obligation will far exceed the guidelines amount. But appellant does not know what his income will be when his maintenance obligation ends. His concern is speculative and therefore not relevant to the determination of his current income. See Thomas v. Thomas , 407 N.W.2d 124, 127 (Minn.App. 1987) ("[t]he court must determine current net income for purposes of setting child support").
Appellant next contends that the district court's consideration of the tax consequences of his maintenance obligation violated the statutory recommendation to use tax tables in determining standard deductions. See Minn. Stat. § 518.551, subd. 5 (providing that standard deductions for income taxes apply and recommending use of tax tables). But "[n]et income is properly calculated based upon money available to the taxpayer." Lenz v. Wergin , 408 N.W.2d 873, 876 (Minn.App. 1987). Using another method is proper when it results in an accurate determiniation of an obligor's net income. See id. (net income properly computed by deducting amounts withheld and adding amounts refunded during a particular year). Appellant does not claim that the district court's consideration of the tax consequences of his maintenance obligation resulted in an inaccurate determination of his actual net income.
Appellant also argues that the district court erred by allowing him only a 3.5% pension deduction. This percentage is consistent with that allowed in the dissolution judgment. As respondent argues, the timing of appellant's increased contribution suggests that he may have been attempting to avoid an increased child support obligation. The district court's allowance of a 3.5% pension deduction was within its discretion.
The district court did not err in determining appellant's current net income. If his income decreases in the future, he can petition the district court at that time for modification of his child support obligation.
2. Appellant argues that the district court erred in increasing his child support obligation. A child support award may be modified upon a showing of substantially increased or decreased earnings of a party or substantially increased or decreased need of a party or the children, any of which makes the existing award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (1996). The district court has broad discretion to modify a child support award, and its decision will not be reversed unless it reached a clearly erroneous conclusion against logic and the facts in the record. Moylan v. Moylan , 384 N.W.2d 859, 864 (Minn. 1988).
Appellant argues that the evidence does not support the district court's finding that a substantial change in circumstances occurred. "A substantial increase in a noncustodial parent's income alone is sufficient to warrant an increase in child support." Marx v. Marx , 409 N.W.2d 526, 528 (Minn.App. 1987). Appellant's net monthly income increased from $3,545 to $4,434, which amounts to a yearly increase of $10,668. This was a substantial increase. See Welsh v. Welsh , 446 N.W.2d 191, 193 (Minn.App. 1989) (increase of $6,240 per year in net income was substantial).
In addition to the increase in appellant's income, respondent's net monthly income decreased from $650 to $0, and her reasonable monthly expenses increased from $2,800 to $3,710. Appellant argues that the district court should have considered the income respondent's significant other potentially could have contributed to respondent's living expenses. Respondent presented evidence that her significant other contributed $400 per month to pay for expenses attributable to him. In determining respondent's reasonable expenses, the district court excluded the income contributed by respondent's significant other and offset the expenses attributable to him. The court was not required to consider whether respondent's significant other could have contributed to her living expenses. Cf. Minn. Stat. § 518.64, subd. 2(b)(1) (1996) (when deciding a motion to modify child support, the court shall not consider the financial circumstances of each party's spouse).
Appellant also contends that the district court erred in finding a substantial change in circumstances had occurred because the increase in respondent's expenses was not attributable to the children's needs, but instead, was attributable to the increase in respondent's medical expenses resulting from her breast cancer treatment and to a loan respondent incurred to pay the dissolution property settlement. The list of expenses submitted by respondent shows an increase in medical expenses from $20 to $330 and an increase in a loan payment to her father from $100 to $500. Even if the increases in respondent's medical expenses and the loan payment to her father, which total $710 per month, are deducted from respondent's reasonable monthly expenses, her total expenses would be $3,000. This amount exceeds the total amount of maintenance and child support received by respondent. When the needs of the custodial parent and the children exceed their resources, the court is not required to make separate needs findings for the custodial parent and the children. Scearcy v. Mercado , 410 N.W.2d 43, 46 (Minn.App. 1987).
Considering the substantial increase in appellant's income together with the decrease in respondent's income and her inability to meet her reasonable monthly expenses, the district court did not err in determining that a substantial change in circumstances had occurred.
Appellant next argues that the district court erred by failing to make a specific finding that the existing child support order was unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a), establishes a presumption that a substantial change in circumstances has occurred and a rebuttable presumption that an existing support order is unreasonable and unfair if the application of the child support guidelines in section 518.551, subdivision 5, to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $50 per month higher or lower than the current support order.
Application of the guidelines to appellant's income of $4,344 resulted in a child support obligation of $1,552 per month, which was 24% and more than $50 higher than his existing child support obligation of $1,250 per month. When the presumptions set forth in Minn. Stat. § 518.64, subd. 2(a) apply, the party opposing modification of child support has the burden of presenting evidence to rebut the presumption that the existing support order is unreasonable and unfair. See Rouland v. Thorson , 542 N.W.2d 681, 684 (Minn.App. 1996) (when presumptions set forth in Minn. Stat. § 518.64, subd. 2(a) applied, obligor had burden of presenting evidence to support position that support should not be set according to guidelines based on obligor's current income). A party who fails to present evidence to rebut the presumption cannot complain about the court's failure to make findings on the issue. See id. at 684 n. 1 (obligor waived the issue of lack of findings on children's needs by failing to present evidence of the children's needs). The evidence presented by appellant regarding increased expenses attributable only to respondent's needs and a potential contribution to respondent's expenses by her significant other was insufficient to rebut the presumption that the existing support order was unreasonable and unfair. Appellant does not cite to additional rebuttal evidence. The district court was not required to expressly find that the existing support order was unreasonable and unfair.
3. Minn. Stat. § 518.1751, subd. 1(a) (1996), provides that "[u]pon request of either party * * * the court may appoint a visitation expeditor to resolve visitation disputes."
"[V]isitation dispute" means a disagreement among parties about visitation with a child, including a dispute about an anticipated denial of a future scheduled visit. "Visitation dispute" includes a claim by a custodial parent that a noncustodial parent is not visiting a child as well as a claim by a noncustodial parent that a custodial parent is denying or interfering with visitation.
Id. , subd. 1(b) (1996).
The affidavit submitted by appellant in support of his motion to appoint a visitation expediter stated:
As was recognized by the Court in the Memorandum attached to the Court's Findings and Order dated December 13, 1996, there has been a long history of communication and other difficulties which have created problems with my access to and relationship with my sons. This is extensively documented in the Court file. Unfortunately, these problems have continued over the last two months. * * * The continuing difficulties now include Respondent's unwillingness to allow me to talk to our children at her residence. I often have to discuss logistics and other issues related to our children with Respondent's significant other rather than Respondent.
The court's December 13 order addressed appellant's request to have the children attend his wedding and did not refer to any ongoing visitation disputes. Respondent stated in an affidavit that appellant's complaint about her unwillingness to allow him to talk to the children at her residence apparently referred to a few occasions during the previous two months when appellant telephoned the children at inconvenient times and therefore the children were unable to speak with him. She also stated that because of her health problems, she did not have the strength to communicate with appellant and therefore she had her significant other communicate with appellant on her behalf. Respondent believed the communications between appellant and her significant other had been going well. The evidence presented by respondent indicates that she was not attempting to deny or interfere with appellant's visitation. The district court did not abuse its discretion by denying appellant's motion to appoint a visitation expediter.