Opinion
A21-0181
03-31-2022
In re the Marriage of: Dmitri M. Medvedovski, Petitioner, Appellant, v. Nadezhda Ivanovna Medvedovski, Respondent.
Hennepin County District Court File No. 27-FA-12-2889
Considered and decided by Jesson, Presiding Judge; Larkin, Judge; and Bryan, Judge.
ORDER OPINION
Jeffrey M. Bryan Judge.
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. In this appeal, appellant-father Dmitri Medvedovski challenges an order of the child support magistrate (CSM) denying appellant's request to modify child support.For the following reasons, we affirm the CSM's order.
This court treats the CSM's original decision as the decision of the district Kilpatrick v. Kilpatrick, 673 N.W.2d 528, 530 n.2 (Minn.App. 2004). court.
2. In 2009, appellant and respondent-mother Nadezha Medvedovski divorced. The dissolution decree granted respondent sole legal and sole physical custody of the parties' two minor children, and reserved appellant's parenting time. A subsequent order issued in February 2013 required appellant to pay $1, 129 per month in basic child support, provide medical and dental insurance through his employment, and respondent was required to pay medical support of $117 per month. Appellant's basic support increased to $1, 284 per month due to cost-of-living adjustments.
3. Appellant has a Ph.D. in applied economics, and from 2002 to July 2020, he worked as an economics professor at Bethel University. In April 2020, his employer notified him in an email that his position had been eliminated. Since the elimination of his position, appellant has made no child support payments. On July 31, 2020, appellant moved to modify his child-support obligation pursuant to Minnesota Statutes section 518A.39, subdivision 2 (2020), based on a substantial decrease in his income. Respondent filed a responsive motion and affidavit on September 1, 2020, opposing appellant's motion and requesting no further relief.
Although he did not raise this argument below, appellant now asserts that he established a substantial decrease in his income because he was granted in forma pauperis status. This argument is not properly before this court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (noting that appellate courts generally address only those questions previously presented to and considered by the district court); Bedner v. Bedner, 946 N.W.2d 921, 926 (Minn.App. 2020) (applying this aspect of Thiele in a family-law appeal).
In his submission to this court, appellant asserts that he received untimely service of the responsive motion. To the extent that appellant now challenges the CSM's consideration of the responsive motion, we discern no reversible error because the responsive motion did not request new relief to which appellant could have responded.
4. The CSM held a contested hearing, at which time both parties presented evidence and made arguments. The evidence included the email from Bethel University to appellant notifying him of its decision to eliminate his position. The email referenced an attached letter that outlined the terms of his departure and severance package. The notice from the university also stated that appellant would have 21 days to sign an agreement and general release. Appellant did not provide a copy of the attached letter itself and testified that he refused to accept the termination agreement and severance package. Appellant refused to answer whether he was engaged in litigation against his former employer. Appellant also testified that he was disabled and referred to a "team of doctors" who determined that he was unable to work, although as of the time of the hearing, appellant had not applied for unemployment benefits, General Assistance, or social security disability benefits.
5. Respondent argued that appellant had other sources of income. A printout from an online website listed appellant as a "Health Educator in Saint Paul, MN" and provided his phone number to make appointments. Respondent also argued that appellant's 2019 federal income tax return listed "other income from Schedule 1" and a loss of $24, 142 related to self-employment. Appellant testified that he did not recall making a profile on the website, had dissolved his prior business, had not volunteered his health education services for several years, did not file the Schedule 1, and did not receive additional income from self-employment.
6. Following the hearing, the CSM held the record open for more submissions and ordered appellant to file the following items: (1) current statements from all of his treating medical doctors stating his diagnoses, treatment plans, and how the diagnoses affect his ability to work now and in the future; (2) a complete copy of his 2019 federal and state income tax returns, including all attachments and Schedule 1; (3) verification of the dissolution of his business; (4) his 2020 year-to-date income from self-employment; and (5) bank statements from June, July, and August 2020. Appellant filed 98 pages which included statements from a medical doctor, chiropractor, physical therapist, and social worker.
7. The CSM denied appellant's modification request, concluding that appellant failed to present credible evidence that there had been a reduction in his earning ability since the prior order. Appellant moved for review and the district court affirmed the CSM order. On appeal to this court, appellant makes two procedural challenges, arguing that CSM prevented him from cross examining respondent and that the CSM restricted his ability to submit evidence.
8. We conclude that both arguments mischaracterize the proceedings before the CSM. Contrary to appellant's first procedural argument, the CSM did not prevent him from having an opportunity to cross examine respondent. In fact, appellant had such an opportunity and did ask respondent questions, although he also made several objected-to statements that were not in the form of a question. In addition, the CSM extended the length of the contested hearing well past the allotted amount of time so that both parties would have more time to present and contest evidence. Likewise, contrary to appellant's other argument, the CSM did not restrict his ability to submit evidence. Instead, after the conclusion of the contested hearing, the CSM left the record open and directed appellant to certain specific items that would have supported his position. For these reasons, neither of appellant's procedural challenges has merit.
9. Appellant also challenges the CSM's finding regarding his income. Appellant disagrees with the CSM's conclusion that he failed to establish a substantial decrease in his income. We are not convinced by appellant's remaining argument because appellant misconstrues our standard of review and because the record supports the CSM's findings.
10. A child support order may be modified upon a showing of a substantial change in circumstances that makes the existing order unreasonable and unfair, including a showing of a "substantially increased or decreased gross income of an obligor or obligee." Minn. Stat. § 518A.39, subd. 2(a)(1). The party seeking to modify child support has the burden of proof to establish these circumstances. Heaton v. Heaton, 329 N.W.2d 553, 554 (Minn. 1983). On appeal from a child support magistrate's ruling that the district court has affirmed, the standard of review is the same standard as would have been applied if the decision had been made by a district court in the first instance. Ludwigson v. Ludwigson, 642 N.W.2d 441, 445-46 (Minn.App. 2002). Whether to modify child support is within the broad discretion of the district court. Shearer v. Shearer, 891 N.W.2d 72, 77 (Minn.App. 2017).
11. A parent's earning capacity is a question of fact that we review for clear error. Schisel v. Schisel, 762 N.W.2d 265, 272 (Minn.App. 2009) (noting that appellate courts review a district court's findings regarding income for clear error); see Minn. Stat. § 518A.29(a) (2020) (noting that "gross income" includes "potential income," if any). "[Appellate courts] will not conclude that a factfinder clearly erred unless, on the entire evidence, we are left with a definite and firm conviction that a mistake has been committed." In re Civil Commitment of Kenney, 963 N.W.2d 214, 221 (Minn. 2021) (quotations and citations omitted). Additionally, appellate courts should not reconcile conflicting evidence or "weigh the evidence as if trying the matter de novo." Id. (quotation omitted). "When the record reasonably supports the findings at issue on appeal, it is immaterial that the record might also provide a reasonable basis for inferences and findings to the contrary." Id. at 223 (quotation omitted).
12. In this case, appellant disagrees with the CSM's conclusion that appellant had "not demonstrated a reduction in his earning ability since the prior order." Appellant argues that the evidence presented is sufficient to establish a substantial change in his income and that the CSM erred when it found that his current income was unchanged. Appellant's argument, however, overlooks our standard of review. Appellant requests that we consider the evidence anew and argues that the evidence presented supports alternative inferences and findings that the CSM did not make. Under clear error review, however, we must defer to the CSM's credibility determinations and weighing of evidence. See, e.g., Kenney, 963 N.W.2d at 221-22.
13. Further, based on our review of the evidence, we conclude that the record supports the determinations that the CSM made, including the determination that appellant failed to carry his burden of proof regarding a substantial change in circumstances.Although appellant testified that he was disabled, he did not provide evidence to confirm any diagnosis or discuss how a diagnosis affects appellant's abilities either temporarily or long-term. In addition, the evidence presented regarding appellant's earnings history is consistent with the CSM's findings. Not only does the evidence establish that appellant has had a consistent earning capacity, it also shows appellant's history of income from his private business, including tax documents and documents from the Secretary of State. Viewing this evidence in the light most favorable to the district court's findings of fact, we are not left with the definite and firm conviction that a mistake was made when the CSM determined appellant's income was unchanged for purposes of deciding the modification motion.
Appellant's argument also seems to shift the burden of proof. The CSM was not imputing income in the first instance, but rather addressing whether appellant established the prerequisites to modify a prior child support order. Appellant bears the burden to establish a substantial decrease in income, and respondent need not prove appellant's current income in order to successfully oppose appellant's motion to modify child support.
In his brief, appellant challenges the CSM's order based on conditions that existed at the time of his appeal but were not shown or argued at the time of the contested hearing. We do not consider this evidence. See Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977) (stating that "[i]t is well settled that an appellate court may not base its decision on matters outside the record on appeal, and that matters not produced and received in evidence below may not be considered"); see Minn. R. Civ. App. P. 110.01 (defining the record on appeal as the record presented to the district court).
IT IS HEREBY ORDERED:
1. The district court's order denying appellant's motion to modify child support is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.