Opinion
No. C4-97-74.
Filed September 9, 1997.
Appeal from the District Court, Hennepin County, File No. 73191.
David Gronbeck, (for appellant).
Vicki Fagre-Stroetz, (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This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION
Appellant-father challenges the trial court's retroactive increase of his child support obligation. We affirm.
FACTS
The judgment dissolving the marriage of appellant-father Monte Thomas Johnson and respondent-mother Joyce Ann Johnson awarded mother custody of the parties' child and ordered father to provide support and medical insurance. A February 1989 order set support at $24 per week ($104 per month) because father had only temporary, part-time employment and required father to inform the county of changes in his employment and income. In December 1989, father got a full-time job that provided medical coverage. Support was not increased to the guideline level until spring 1994. In November 1994, the parties' minor child married. Father, unaware of the marriage, continued to pay support. In 1996, father learned of the marriage and sought reimbursement of support paid after the marriage. Mother then learned that father got his job in 1989 and moved for reimbursement of medical insurance premiums she paid after December 1989 and for support to be increased retroactively to December 1989 based on father's income from his full-time job. A referee granted both parties' motions, offset the amounts the parties owed each other, and ordered father to pay mother the difference. The district court made minor changes to the order and affirmed.
DECISION
Support may be modified retroactively to a date earlier than service of the motion to modify if the court finds that the moving party was precluded from serving a motion by "a material misrepresentation of another party" and that the moving party, "when no longer precluded, promptly served a motion." Minn. Stat. § 518.64, subd. 2(c) (1996). The district court found that there was no evidence father notified the county of the change in his employment and that it was "probable" mother would have sought increased support earlier if father had properly notified the county of his increased income.
1. Father claims that because his support obligation was increased in 1994, mother knew then that his income had increased and therefore that her 1996 motion to retroactively increase support was not prompt. Father also claims the finding that it is probable that mother would have sought increased support earlier does not satisfy the statutory requirement that her motion be made promptly.
Father has not shown (a) an attorney-client relationship between mother, a recipient of support collection services, and the county when the county sought increased support in 1994; or (b) that information known by the county can be imputed to mother. See Minn. Stat. § 518.255 (1996) (no attorney-client relationship exists between attorneys for a public authority and recipients of services under a child support enforcement program); cf. Larson v. Johnson , 175 Minn. 502, 504, 221 N.W. 871, 872 (1928) (rejecting claim that knowledge attorney acquired in service of one client can be imputed to another client). Under these circumstances, we accept the uncontested statement in mother's 1996 affidavit that she (as opposed to the county) learned about father's job "recently" and must conclude that her request for a retroactive increase in support was prompt.
A "material misrepresentation" supports a retroactive support modification. Minn. Stat. § 518.64, subd. 2(c). The district court found no evidence that father informed the county of his new job as required by the 1989 order. A support obligor's failure to produce financial information as required by a court order is a misrepresentation for purposes of retroactive support modification. Johnson v. Johnson , 533 N.W.2d 859, 866 (Minn.App. 1995). Father claims Johnson is distinguishable. The critical element in Johnson was that a prior court order affirmatively put the duty on the obligor to produce the information in question. Id. Because that is the situation here, father's attempt to distinguish Johnson is unsuccessful.
2. Father challenges the finding that he failed to report his changed employment to the county. Findings of fact are not set aside unless clearly erroneous. Minn.R.Civ.P. 52.01. Father claims that because the county sent its support audit requests to his employer, the county must have known where he worked. Father then infers that he must have informed the county of his job.
Father cites no documentary or other evidence affirmatively showing that he satisfied the notice requirements of the 1989 order, and father did not provide this court with the county's support and collections file. See Truesdale v. Friedman , 267 Minn. 402, 404, 127 N.W.2d 277, 279 (1964) (party seeking review must see that appellate court has a record sufficient to show the alleged errors and all matters necessary for consideration of the questions presented). Because the district court file lacks an affirmative indication that father informed the county of his new job, the limited record before this court does not show that the finding that he failed to inform the county of his new job is clearly erroneous. See Pedro v. Pedro , 489 N.W.2d 798, 801 (Minn.App. 1992) ("[c]learly erroneous means `manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole'") (quoting Northern States Power Co. v. Lyon Food Prods., Inc. , 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975)) , review denied (Minn. Oct. 20, 1992).
If father believed the record presented to this court was deficient because it lacked the support and collections file, he should have corrected the deficiency. See Minn.R.Civ.App.P. 110.05 (procedure for resolving disputes about record and correcting errors in and omissions from the record).
3. Father also challenges the portion of finding 13 that states:
The employer verification response shows [father's] hourly rate of pay, full time, was $10.45 per hour in early 1994. This is more than double what he stated to the Court ten months prior .
(Emphasis added.) Father claims that because he made no representation to the court about his income 10 months prior to "early 1994," the finding is erroneous, and any inference based thereon that he misrepresented his income is defective. Any error is harmless under Minn.R.Civ.P. 61 because (a) the 1989 order put the duty on father to keep the county informed of changes in his income; (b) the record before this court lacks any affirmative indication he did so; (c) the change in father's income occurred when he started his new job in 1989, not in 1993; and (d) the district court's calculations show that it figured the amount due to mother for the retroactive increase in support based on the date father started his job, not some point in 1993.