Virtual Home Care, Inc. and Katheryn I. Kunkel, Appellants, vs. St. Paul Fire & Marine Insurance Company, Respondent, CFG Insurance Services, Inc., 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This opinion will be unpublished and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

Dianne Carol Brady, petitioner,
Respondent,
 
vs.
 
Femi Olowu,
Appellant.

Filed October 3, 2000

Ramsey County District Court

File No. F39650580

Ronald B. Sieloff, Sieloff and Associates, P.A., Yankee Square Office III, 3460 Washington Drive, Suite 214, Eagan, MN 55122 (for respondent)

Richard John Diffatte, Suite 560 RCGC-W, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for Ramsey County)

Wright S. Walling, Jody Ollyver DeSmidt, Walling & Berg, P.A., 121 South Eighth Street, Suite 1550, Minneapolis, MN 55402 (for appellant)

            Considered and decided by Toussaint, Chief Judge, Amundson, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            In October 1996, the district court adjudicated appellant Femi Olowu as the father of respondent Dianne Carol Brady's minor child born in October 1995 and ordered appellant to pay child support.  In 1999, appellant moved to reduce his child support obligation based on decreased earnings and a purported stipulated agreement between the parties.  The district court denied appellant's motion to reduce child support because appellant did not show a substantial decrease in his income.

Appellant challenges the district court's order, alleging (1) the district court failed to make a finding of his current income; (2) the district court erred in refusing to allow appellant, who is self-employed, to reduce his income by reasonable business expenses and depreciation deductions; and (3) the district court failed to recognize that the parties had abided by an unsigned stipulation since December 1996.  Appellant further contests the district court's order denying his motion to review the above order.  Because appellant failed to provide an adequate record for review to substantiate his alleged change in circumstances, we affirm.

            The district court has broad discretion in modifying child support and this court's review is limited to determining whether the district court abused its discretion.  Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999).  We will reverse the district court's order only if the court abused its discretion by making a clearly erroneous finding unsupported by the record.  Id.

I.

Appellant argues that the district court erred because it failed to determine appellant's current net income before denying his motion to modify his current child support obligation.  We disagree.

Net income from self-employment is defined as gross receipts less ordinary and necessary expenses.  Minn. Stat. § 518.551, subd. 5b(f) (Supp. 1999).  Appellant has not, however, provided the court with financial information other than his tax returns to support his income claim.  Taxable income is not necessarily a reliable indication of net income.  Otte v. Otte, 368 N.W.2d 293, 297 (Minn. App. 1985).

In 1996, the district court set appellant's monthly child support obligation at the statutory guidelines amount for an obligor having a monthly net income of $2,000.  Minn. Stat. § 518.551, subd. 5(b) (Supp. 1999).  The 1996 order was never appealed and the time for filing an appeal has expired.  Minn. R. Civ. App. P. 104.01. 

In December 1999, the district court found that appellant had not produced evidence that his monthly net income had decreased.  In January 2000, the district court found that appellant had "not produced evidence that the factual or legal determinations" in the December 1999 order were incorrect.  Therefore, on these findings, we conclude that the district court made a net income determination.  A district court's determination of a child support obligor's income for child support purposes is a finding of fact which will not be set aside if it has a reasonable basis in fact and is not clearly erroneous.  State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999); Strauch v. Strauch, 401 N.W.2d 444, 447 (Minn. App. 1987).

In this case, appellant has failed to provide this court with a transcript of the district court proceedings.  Without an adequate record, we cannot review the district court's findings and determine whether the court acted arbitrarily or whether the findings are supported by the evidence.  Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968).  Because appellant has not produced an adequate record for review to substantiate his claim of decreased earnings, we cannot conclude that the district court abused its discretion in denying appellant's motion to decrease child support.

II.

Appellant also argues that the district court erred in disallowing his business expenses and depreciation.  "A total disregard of depreciation * * * is reversible error."  Freking v. Freking, 479 N.W.2d 736, 740 (Minn. App. 1992)(citation omitted).  Appellant has the burden of proving that his depreciation deductions were ordinary and necessary business expenses.  Minn. Stat. § 518.551, subd. 5b(f).  "When the record contains credible evidence of legitimate depreciation deductions, the [district] court should consider those deductions in determining an obligor's net income."  Preussner v. Timmer, 414 N.W.2d 577, 579 (Minn. App. 1987)(citation omitted). 

Here, the only evidence in the record consists of appellant's 1998 and 1997 federal individual tax returns.  Tax returns alone, however, may be insufficient data to determine income when substantial depreciation deductions are taken.  See Knott v. Knott, 358 N.W.2d 493, 496 (Minn. App. 1984) (tax returns alone insufficient to determine income where substantial depreciation deductions are taken on a farming operation). 

The district court found that appellant's deductions and depreciation should not be taken into account in calculating net income for child support purposes.  Because appellant failed to provide an adequate record for review, we cannot conclude that the district court erred in disallowing appellant's business expenses and depreciation deductions.

III.

Appellant further argues that the district court erred in failing to adopt the parties' alleged stipulation on child support.  In general, stipulations are favored in marital dissolution cases and are afforded the same binding strength as contracts.  Shirk v. Shirk, 561 N.W.2d 521 (Minn. 1997). 

Here, appellant never signed the written stipulation nor was it filed with approval by the court.  The stipulated child support obligation, moreover, is below the statutory guidelines amount.  A district court must not blindly accept and approve a child-support stipulation.  Compart v. Compart, 417 N.W.2d 658, 662 (Minn. App. 1988).  Therefore, absent an adequate record for us to review, we cannot conclude that the district court erred in failing to adopt the parties' alleged stipulation on child support.

IV.

            Respondent argues that she is entitled to attorney fees and costs based on Minn. Stat. § 518.14, subd. 1 (1998).  This court has the discretion to award attorney fees on appeal.  Case v. Case, 516 N.W.2d 570, 574 (Minn. App. 1994).  Because there is no substantiation of law or fact to support appellant's claims, we award respondent $1,000 in attorney fees for this appeal.

            Affirmed.

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