In Re the Marriage of: Harry Mark Hoberman, petitioner, Appellant, vs. Sandra Lynn Kaplan, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-99-1521

 

 

In Re the Marriage of:

Harry Mark Hoberman, petitioner,

Appellant,

 

vs.

 

Sandra Lynn Kaplan,

Respondent.

 

 

Filed March 21, 2000

Affirmed; motion denied

Huspeni, Judge*

Hennepin County District Court

File No. 193636

 

 

Jonathan Jay Fogel, Messerli & Kramer, 1800 5th Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for appellant)

 

Robert M. Smith, 701 Fourth Avenue South, Suite 500, Minneapolis, MN 55415  (for respondent)

 

 

            Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Huspeni, Judge.

U N P U B L I S H E D  O P I N I O N

 

HUSPENI, Judge

            Appellant Harry M. Hoberman appeals from the district court's order setting a fixed monthly payment of child support and denying appellant's request for a more specific visitation schedule.  Respondent Sandra Kaplan challenges the district court's denial of past-due child support.  Because the district court did not err in any of its determinations, we affirm.  We deny respondent's request for attorney fees on appeal.

FACTS

 

            The parties' marital termination agreement incorporated into the decree of dissolution dated December 16, 1994, provided for joint legal custody of their minor son and primary physical custody to respondent, subject to visitation by appellant.  Because appellant's income varied year by year due to receiving wages from the University of Minnesota and doing consulting work as a psychologist, the parties agreed to child support payments based on a percentage of appellant's income.[1] 

            The parties stipulated that appellant's income as well as his monthly child support payments were to be calculated by an accountant, whose determination was binding on the parties.  Any disagreement as to the amount was also to be communicated to the accountant.  There is no indication in the record that respondent ever discussed any issues of appellant's income or support with the accountant.

The parties agree that at some point appellant began paying child support in an amount exceeding that calculated under the decree formula.  They dispute the time frame of those increased payments, however.  In July 1998, appellant informed respondent that he had overpaid child support in 1997 and 1998 and asked that they discuss how to deal with the overpayments.  In a September 2, 1998 letter, appellant informed respondent that he considered his 1998 support obligation to have been satisfied.

            On September 21, 1998, respondent moved the district court to order that appellant pay a fixed amount of child support, that he pay child support arrears that had accrued under the decree, and that appellant pay toward respondent's attorney fees.  Appellant moved the court for appointment of a visitation expeditor.  Pursuant to an order dated November 14, 1998, a visitation expeditor was appointed and an interim support order established (appellant was to pay $800 per month commencing September 1, 1998).  In a subsequent order dated April 11, 1999, the court set child support at $1,250 per month commencing October 1, 1998, and stated that "[n]either party has documented any basis to adjust support retroactively."

D E C I S I O N

 

1.         Modification of Child Support

 

A.        Modification of the formula agreed to by the parties

 

Appellant argues that the district court erred in modifying the child support formula that the parties agreed to because it was part of a stipulation.  We cannot agree.  While stipulations are favored in marital dissolution cases, "the trial court must not blindly accept and approve a stipulation between the parties in regard to support of their children." Compart v. Compart, 417 N.W.2d 658, 662 (Minn. App. 1988); see also Murray v. Murray, 425 N.W.2d 315, 318 (Minn. App. 1988) (maintenance stipulations more subject to restraint from modification than child support stipulations).

            Appellant further argues that because the decree was based on the stipulations in the marital termination agreement, the agreement is merged into the decree and cannot be attacked unless one of the specific circumstances under Minn. Stat. § 518.145, subd. 2 (1998), are met.  Shirk v. Shirk, 561 N.W.2d 519, 521-22 (Minn. 1997).  Appellant's reliance on Shirk is misplaced.  In Shirk, appellant was seeking to reopen the decree in order to vacate the property division and move for temporary maintenance.  Id. at 519.  Shirk does not address nor contemplate a situation such as this one, where the party is seeking to modify child support based on a substantial change in circumstances under Minn. Stat. § 518.64 (1998).

Caselaw also supports the district court's discretion to modify formula-based child support.  In Allan v. Allan, 509 N.W.2d 593 (Minn. App. 1993), the parties similarly had stipulated to a percentage formula.  There, this court held that

a child support obligation may be changed from a percentage formula to a specific dollar amount only upon a showing of a substantial change in circumstances that makes the terms of the existing order unreasonable and unfair.

 

Id. at 596.  The district court here found both a substantial change in circumstances and that existing decree support was unreasonable and unfair. 

While appellant's total net income was $3,056.91 per month in 1994, the court found that from January through September of 1998, appellant had an average gross monthly income of $13,357.  In addition, appellant's 1997 income taxes indicated, and the court found, that his yearly gross income was $136,793.  Even after taking all reasonable deductions into account, appellant's income had increased substantially from the time of the dissolution.  There is support in the record for the district court's determination of changed circumstances making the current decree provisions unreasonable and unfair.  Therefore, under Allan, abandoning formula-based support for a fixed amount was proper.

B.        Business Expenses

            Appellant also claims that the district court erred in determining his income because it did not deduct appellant's legitimate business expenses, which he was entitled to under the decree and Minn. Stat. § 518.551, subd. 5b(f) (1998).  The district court concluded in its order that

[Appellant's] actual income appears to be higher tha[n] he is taxed on.  [Appellant] claimed 1997 Schedule C income of $43,353, but deposits to his personal account that year were some $83,000.  That difference has not been fully explained.  [Appellant] did not provide documents that were reasonably requested * * * .  Further, unspecified "office expense" of $33,888 and "advertising" of $16,978 seem extraordinary for a professional in a one-person office with no wages or contract services paid for, and with a primarily governmental clientele.

 

            * * * *

 

Based upon review of all the documents in the file, and considering the propriety of [Appellant's] claimed deductions, his net monthly income for child support purposes is at least the $5,000 suggested by Respondent.

 

The district court's assessment of credibility will not be reversed absent an abuse of discretion.  General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987).  Our review of the record does not indicate an abuse of discretion in the trial court's determination of income available for child support.

            Appellant also claims that the district court erred in finding that there was a discrepancy between his stated income and the actual money in his accounts.  We note, initially, the district court's concern that appellant did not supply all income information requested.  In addition, while appellant explains that deposits included income from his wife, advances from credit cards, loans from his parents, and money he withdrew from his Fidelity IRA, there is no evidence in the record to substantiate these arguments.  Therefore, we cannot consider them on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  We see no error by the district court.

2.         More Specific Visitation Schedule

 

            Appellant claims that the district court erred in failing to order a more specific visitation schedule and asks that this court remand so that the error can be rectified.  We find appellant's argument on this issue, at best, premature.  The district court has extensive discretion in deciding visitation questions and will not be reversed absent an abuse of discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  A district court's findings may not be set aside unless they are clearly erroneous.  Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978).

The district court states in its order that

[b]oth parties seem ready to debate as often as to resolve problems.  The court has appointed a new visitation expediter and counsels the parties that statespersonship in relationship to child access issues is always good for children.  The court also notes that involving a child in the schedule problems of parents is dangerous for the child.

 

While on appeal, appellant describes in depth the difficulties he has encountered historically with visitation, he provides no legal basis under which this court could remand.  Appellant does not challenge the district court's appointment of a visitation expeditor, and there is no indication in the record or in the court's order of April 11, 1999, that assistance of the expeditor appointed in November 1998 had been sought by the parties or that efforts to resolve visitation problems had failed.  The best interests of the minor child here would be served by the full cooperation of the parents with the visitation expeditor in an effort to reach agreement on a visitation schedule that would accommodate the wishes of each party to the greatest extent possible, while keeping in mind that the welfare of the minor child is always paramount. 

3.         Past Due Child Support

 

            Respondent argued that appellant had incurred $8,000 in past-due child support as a result of his non-compliance with a provision in the decree requiring payment of 25% of appellant's consulting income from the period of April 15, 1996 through December 31, 1996.  The district court, in effectively rejecting respondent's argument on the existence of arrears, concluded that "[n]either party has documented any basis to adjust support retroactively."  We find no error in the district court's determination.

            The parties stipulated that a mutually agreed-upon accountant would review all relevant documents in order to determine appellant's child support payments consistent with the stipulated formula, and that any disagreements regarding the payment amount should be reported to the accountant.  The parties also agreed that the accountant's determination was binding.  Because the accountant was given the discretion to determine appellant's income and monthly child support payments under the stipulated formula and because there is no indication in the record that respondent ever challenged the accountant's determinations, the district court's denial of past-due child support was proper.

4.         Attorney Fees

 

            After reviewing the record, we decline to award respondent's request for attorney fees on appeal.

            Affirmed; motion denied.

 

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The total amount of appellant's child support payment was computed by two different figures.  He was required to pay

 

25% of his net salary, with net salary being defined as gross monthly salary, less federal income tax, state income tax, social security deduction, reasonable pension deductions (6% of gross income), union dues, cost of dependent health insurance coverage, and cost of individual or group health/hospitalization coverage or an amount for actual medical expenses, assuming a withholding status of S-1. 

 

In addition, appellant was to pay 25% of his net consulting income, which included his

gross consulting income, less all legitimate expenses set forth on petitioner's Schedule C, less federal, state, and self-employment taxes, reasonable pension deductions (6% of gross income), union dues, cost of dependent heath insurance coverage, and cost of individual or group health/hospitalization coverage or an amount for actual medical expenses, assuming a withholding status of S-1.