Opinion
No. C5-01-798.
Filed December 4, 2001.
Appeal from the District Court, Hennepin County, File No. DC213327.
Sean A. Shiff (for respondent)
Scott A. Weldon (pro se appellant)
Considered and decided by Anderson, Presiding Judge, Peterson, Judge, and Amundson, Judge
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
By orders dated January 11 and March 8, 2001, a child support magistrate and the district court denied appellant's motion to modify his child-support obligation. Appellant challenges these determinations on two grounds: (1) that the child-support magistrate erred by not applying the Hortis/Valento formula to calculate appellant's child-support obligation; and (2) that the child support magistrate erred by failing to find a substantial change in circumstances warranting a modification in appellant's child support obligation. We affirm.
DECISION
In August 1996, the parties divorced; respondent was awarded sole physical custody and both parties were awarded joint legal custody of their minor son. Appellant was ordered to pay child support and childcare support. After cost-of-living adjustments, appellant pays $521.64/month for child support and $68.64/month for childcare support. In October 1997, appellant's child-support obligations were suspended as a result of his incarceration for violating federal law. On September 10, 1999, appellant filed a motion for contempt of court against respondent for failing to abide by the parties' original visitation schedule. On January 21, 2000, respondent countered by initiating a domestic abuse claim against appellant, alleging that appellant abused the parties' minor son. The district court referee dismissed respondent's domestic-abuse claim, finding that there was no basis for an order for protection.
On March 13, 2000, a child support magistrate ordered a visitation evaluation update. In two separate orders, the magistrate ordered visitation modifications. On November 9, 2000, appellant moved to modify his child support obligation; appellant did not move for a change in physical custody. On January 11, 2001, the child support magistrate denied appellant's request to modify his child support obligation; the district court subsequently affirmed the child support magistrate's order. This appeal followed.
I. Hortis/Valento
Appellant first argues that the child support magistrate erred by failing to apply the Hortis/Valento formula to determine his child support obligation. Appellant maintains that the time he spends with his minor son is nearly equal to that of respondent, who retains sole physical custody of the child.
We will reverse a district court's order regarding the modification of child support "only if we are convinced that the court abused its broad discretion" and reached a "conclusion that is against the logic and the facts on [the] record." Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999) (alteration in original) (quotation omitted). Appellant's failure to provide this court with a transcript of the child-support-modification hearing limits this court's review of the child support magistrate's factual findings. Under Minn.R.Civ.App.P. 110.02, it is the appellant's responsibility to provide this court with a trial transcript. Where, as here, an appellant fails to provide a transcript, review is limited to whether the findings of fact support the conclusions of law and the judgment. Duluth Herald News Tribune v. Plymouth Optical Co., 286 Minn. 495, 498, 176 N.W.2d 552, 555 (1970); see also Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968) (party's pro se status did not relieve him of providing adequate record). Although a transcript would be helpful in discerning exactly what arguments were made before the magistrate, the record is not so inadequate that the appeal must be dismissed. The submissions of the parties, together with the decision of the child support magistrate, provide an adequate record on which this court can make its decision. Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn.App. 1995) (reaching issues despite absence of transcript).
This appeal presents a purely legal question, and deference need not be given to a district court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minn. Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).
After a thorough analysis of the applicable visitation orders, the child support magistrate found that appellant "has access with the child 41% of the time through the beginning of the school year and 38% once the classes start"; therefore, the Hortis/Valento formula did not apply to the parties' sole-physical-custody arrangement because there was not a relatively equal sharing of physical custody.
The supreme court recently explained that 1998 legislative amendments to Minn. Stat. § 518.54, subd. 8 (2000), which defines a child support "obligor" compels the conclusion that Hortis/Valento is not to be applied in circumstances of sole physical custody, absent findings of grounds for deviation from the guidelines under Minn. Stat. § 518.551, subd. 5(i).
Rogers v. Rogers, 622 N.W.2d 813, 821 (Minn. 2001). The court noted,
The legislature intended that the percentage of the children's days that are spent with the noncustodial parent not be the determinative factor in the statutory scheme and may be taken into account only in the context of applying the six factors to be considered in setting or modifying child support, or in determining whether a deviation from the guidelines should be approved.
Id. (citing Minn. Stat. § 518.551, subd. 5(c), (i) (2000)); see also Duffney v. Duffney, 625 N.W.2d 839, 842 n. 1 (Minn.App. 2001) (recognizing the Rogers decision in the context of sole-physical-custody cases).
The child support magistrate's conclusions of law were issued before Rogers was decided by the supreme court. But even if pre- Rogers law is applied, we conclude that the findings adequately support the magistrate's conclusion that the Hortis/Valento formula should not be applied to determine appellant's child support obligation. See Hoff v. Kempton, 317 N.W.2d 361, 363 (Minn. 1982) ("[A]bsent special circumstances or specific pronouncements by the overruling court that its decision is to be applied prospectively only, the decision is to be given retroactive effect.").
Appellant has not rebutted the presumption in Minn. Stat. § 518.54, subd. 8, that respondent is not an obligor for purposes of calculating child support. To overcome this presumption, the child support magistrate must make specific findings that a deviation from the guidelines is appropriate; no such findings were made. See id. Instead, the child support magistrate found that appellant failed to show that there had been a substantial change in circumstances regarding his income, expenses or those additional expenses incurred on behalf of his child during their visits. The child support magistrate found that the guidelines would have made it appropriate to increase appellant's support obligation if a motion to do so was before the court.
Therefore, because appellant has not rebutted the presumption that respondent is not an obligor for child support purposes and because the child support magistrate did not make specific findings that a deviation from the guidelines is appropriate, we conclude that the Hortis/Valento formula should not apply in determining appellant's child support obligation.
II. Substantial Change in Circumstances
We understand appellant's argument that an increase in visitation time and a decrease in income should be reflected in a reduction in his child support obligation to be an alternative argument that the child support magistrate erred by not finding that there had been a substantial change in circumstances.
Minn. Stat. § 518.64, subd. 2(a)(1) (2000), provides that a child support order may be modified upon a showing of "substantially increased or decreased earnings of a party." A substantial change in circumstances is presumed, and current support is "rebuttably presumed to be unreasonable and unfair if" a current support obligation is at "least 20 percent and at least $50 per month higher or lower than the current support order." Minn. Stat. § 518.64, subd. 2(b) (2000). In deciding a modification motion, a child support magistrate must determine whether a change in income is a substantial change in circumstances that makes the terms of the current support order unfair and unreasonable. Id. Upon finding a substantial change in circumstances, the court must determine the obligor's income and apply the statutory child support guidelines, see Minn. Stat. § 518.551, subd. 5(b) (2000), unless the child support magistrate decides to deviate from the guidelines. In that case, the child support magistrate must make specific
written findings giving the amount of support calculated under the guidelines, the reasons for the deviation, and shall specifically address the criteria in [Minn. Stat. § 518.551, subd. 5(c)] and how the deviation serves the best interest of the child.
Minn. Stat. § 518.551, subd. 5(i) (2000).
A. Decrease in income
Appellant argues that the child support magistrate erred in calculating his income because the court imputed income based on appellant's originally claimed monthly expenses or "budget," instead of adopting appellant's "actual income," evidenced by his 1999 income tax returns. Respondent argues that appellant did not raise this issue before the child support magistrate and, therefore, this court should not consider the issue on appeal. But the child support magistrate did accept appellant's 1999 tax returns as evidence of his income and therefore the issue was raised at the hearing and is reviewable on appeal.
A magistrate's determination of net income for purposes of calculating child support will be affirmed if it has a reasonable basis in fact. Duffney, 625 N.W.2d at 843 (quotation omitted). A court may impute income when actual income is "impracticable to determine." Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn.App. 1996) (quoting Beede v. Law, 400 N.W.2d 831, 835 (Minn.App. 1987)); see also Roatch v. Puera, 534 N.W.2d 560, 565 (Minn.App. 1995) ("If a self-employed person supports himself, yet reports negligible income, a trial court may base net income on earning capacity."). Moreover, appellant bears the burden of providing the child support magistrate with documentation to support his claim for a decrease in income. Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn.App. 1985).
The child support magistrate found that appellant is self-employed as a lighting contractor and is also employed part-time; the child support magistrate also noted that appellant claimed, in his affidavit in support of his motion to modify child support, a gross monthly income of $2,969 and monthly expenses of $3,028. Based on appellant's 1999 tax returns, the child support magistrate calculated appellant's adjusted annual income at $8,183, substantially lower than the annual amount suggested by the gross monthly income he originally claimed in his affidavit to the court. Appellant did not submit any 2000 financial information. The child support magistrate, in light of appellant's failure to submit 2000 financial information, imputed appellant's income at $3,028 per month. The court's finding was based on appellant's claimed monthly expenses and the absence of any evidence that appellant is unable to meet those expenses.
Recognizing appellant's guideline obligation at $3,028 per month would have been greater than his current obligation, the child support magistrate found appellant had not sustained his burden of showing a substantial change in circumstances justifying a reduction of support, but did not award an increase in child support to respondent because a motion to increase support was not before the court.
We conclude that appellant's argument that he has incurred a decrease in income warranting a modification of his child support obligation is without merit. Although appellant now argues on appeal that his income is less than his expenses, he did not submit current and sufficient documentation at the hearing to substantiate his claim. See id. at 319 (stating that where "the only financial information available was contained in the [appellant's] affidavit," the trial court did not err in finding "inadequate documentation of income"). As this court has previously noted,
This court will not engage in speculation and the [appellant] will not be heard to complain when he has failed to provide this court with a reviewable record.
Id. Therefore, the child support magistrate did not abuse her discretion by imputing income to appellant to determine whether there had been a substantial change in circumstances.
B. Increase in parenting time.
Appellant argues that the child support magistrate erred by failing to take account of his increased visitation with his son and the corresponding increase in his expenses to accommodate the increased visitation. In his brief, appellant provides time calculations purporting to show that the child support magistrate erred in her time calculations.
As noted above, where an appellant fails to provide a transcript, review is limited to whether the findings of fact support the conclusions of law and the judgment. Duluth Herald, 286 Minn. at 498, 176 N.W.2d at 555. Minn. Stat. § 518.551, subd. 5(i) (2000), creates a presumption that guidelines support is appropriate and requires district courts to make written findings explaining how deviation from the guidelines "serves the best interests of the child." Id. Moreover, after Rogers, time spent with a non-custodial parent is only one factor to take into account "in determining whether a deviation from the guidelines should be approved." Rogers, 622 N.W.2d at 821 (citation omitted).
The child support magistrate found that the actual time appellant spends with his son is roughly equivalent to the parties' court-ordered visitation schedule; the child support magistrate noted appellant "has access time with the child 41% of the time through the beginning of the school year and 38% once the classes start." After carefully reviewing the submissions of the parties and the district court file, we conclude that appellant's time calculations are not substantiated by the record.
Therefore, we conclude that by basing his argument solely on the time he spends with his son and by failing to submit current financial information, among other evidence, to the child support magistrate for review, appellant has failed to sustain his burden of showing a substantial change in circumstances. There is simply no credible evidence in the record that a deviation from the child support guidelines is warranted.
Therefore, we conclude that the child support magistrate's order denying appellant's motion for a modification of his child support obligation, and the district court's affirmance of that order, is not clearly erroneous.