Thomas Cyril Niccum, petitioner, Appellant, vs. State of Minnesota, Respondent.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
CX-98-705

Tegest Bekele, petitioner,
Respondent,

vs.

Tsegahun W. Boru,
Appellant.

Filed November 3, 1998
Affirmed
Willis, Judge

Hennepin County District Court
File No. 231307

Tegest Bekele, 2020 22nd Avenue S., #180, Minneapolis, MN 55407 (pro se respondent)

Tsegahun W. Boru, 3121 Cedar Avenue S., #310, Minneapolis, MN 55407 (pro se appellant)

Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant-father challenges the district court's denial of his motion for a reduction of his child support obligation. We affirm.

D E C I S I O N

Pursuant to the Divorce with Dignity program, on August 20, 1997, appellant-father Tsegahun W. Boru and respondent-mother Tegest Bekele negotiated and determined that appellant would pay $150 per month in child support. A judgment entered on October 7, 1997, dissolved the parties' eight-year marriage; awarded respondent sole legal and physical custody of the parties' minor child, subject to reasonable visitation by appellant; and required appellant to pay $150 per month in child support in accordance with the parties' agreement.

On October 13, 1997, appellant moved the district court for modification of his child support obligation by reducing his monthly payments to $100, arguing that the $150 he had agreed to pay was beyond his means. In support of his motion, appellant provided two letters from physicians that state appellant suffers from ongoing health problems. He also submitted his 1996 income tax return as evidence of his income.

The district court denied appellant's motion for support modification, finding that:

[Appellant's] circumstances in December were the same as on August 20, 1997. [Appellant] submitted his 1996 tax return showing $6,000.00 income, and letters from his health care providers saying he can only work five hours at a time. These were the circumstances he described on August 20, 1997.

Whether to modify child support is within the district court's broad discretion. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986); Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993), review denied (Minn. June 22, 1993). This court will reverse the district court's decision for abuse of that discretion only if it finds the district court came to a clearly erroneous conclusion against logic and facts in the record. Moylan, 384 N.W.2d at 864; Kuronen, 499 N.W.2d at 53.

The terms of a support decree

may be modified upon a showing of one or more of the following: (1) substantially increased or decreased earnings of a party; (2) substantially increased or decreased need of a party or the child or children that are the subject of these proceedings; (3) receipt of assistance under sections 256.72 to 256.87 or 256B.01 to 256B.40; (4) a change in the cost of living for either party * * *, any of which makes the terms unreasonable and unfair.

Minn. Stat. § 518.64, subd. 2(a) (Supp. 1997); Allan v. Allan, 509 N.W.2d 593, 596 (Minn. App. 1993). The moving party has the burden of establishing a substantial change of circumstances. Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996).

Appellant addresses none of the statutory factors justifying modification of his support obligation. He offers on appeal his 1997 income tax return as additional evidence of his earnings, but the return was not before the district court and therefore is not part of the record and may not be considered on appeal. Minn. R. Civ. App. P. 110.01 (defining record on appeal as documents filed with district court); Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987) (stating that appellate court must strike "any matters not part of the record").

Appellant also argues that the district court erred in relying on "untrue statements" in respondent's affidavit regarding the number of hours appellant can work per week. An appellate court will not reverse a district court's findings of fact, even if based on documentary evidence, unless clearly erroneous. Minn. R. Civ. P. 52.01; First Trust Co. v. Union Depot Place Ltd. Partnership, 476 N.W.2d 178, 181-82 (Minn. App. 1991) (applying rule to uphold findings of fact), review denied (Minn. Dec. 13, 1991). Here, the record evidence regarding appellant's ability to work does not lead to a "definite and firm conviction" that the district court made a mistake. Id. Accordingly, we will not reverse its finding on this issue.

Finally, appellant argues that his August 1997 agreement to provide child support was the result of coercion. We find nothing in the record that suggests appellant was coerced into the agreement, and appellant cites no authority in support of his argument. Appellant, therefore, has waived this argument. See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (stating rule that mere assertion without support from authority or argument in brief waives argument).

Because there was no showing of a substantial change in circumstances since the date of the parties' agreement, the district court did not abuse its discretion in denying appellant's motion to modify his child support obligation.

Affirmed.