In Re the Matter of: Patrick S. Blair, et al., Respondents, vs. Duane F. Palme and Joyce A. Palme, individually, and d/b/a D&S Construction of Forest Lake, a/k/a D&S Construction, Appellants.

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This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-98-778

Kimberly J. Swancutt,

n/k/a Kimberly Bina, petitioner,

Appellant,

vs.

Mark J. Swancutt,

Respondent.

Filed January 19, 1999

Affirmed

Kalitowski, Judge

Mower County District Court

File No. F09232

Fred W. Wellmann, Hoversten, Johnson, Beckmann, Wellmann & Hovey, LLP, 807 West Oakland Avenue, Austin, MN 55912 (for appellant)

Richard D. Stochl, Elwood, O'Donohoe, O'Connor & Stochl, 101 North Locust Avenue, Box 310, New Hampton, IA 50659 (for respondent)

Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant Kimberly Bina contends the district court abused its discretion by denying her motion to modify the parties' dissolution decree by granting her the tax exemption for respondent's and her children. We affirm.

D E C I S I O N

A district court is given broad discretion in setting child support. Joneja v. Joneja, 422 N.W.2d 306, 308 (Minn. App. 1988). Decisions on modification of child support are subject to an abuse of discretion standard. Hennessey v. Stelton, 302 Minn. 550, 550, 224 N.W.2d 926, 927 (1974). Because dependency exemptions are "aligned with child support," they are modified in a similar fashion. Biscoe v. Biscoe, 443 N.W.2d 221, 224 (Minn. 1989). Only in cases where the district court comes to a "clearly erroneous conclusion that is against logic and the facts on the record" will an appellate court find an abuse of discretion. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (quoting Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984)).

The district court has jurisdiction to amend a dissolution stipulation concerning maintenance and support. Greeler v. Greeler, 368 N.W.2d 2, 4 (Minn. App. 1985). The statute governing modification of child support provides:

The terms of an order respecting maintenance or support 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 * * *; (4) a change in the cost of living for either party as measured by the federal bureau of statistics, any of which makes the terms unreasonable and unfair * * *.

Minn. Stat. § 518.64, subd. 2(a) (1998). Here, appellant does not claim receipt of assistance or a change in the cost of living. Thus, for the court to modify the child support decree, there must be a substantial change of circumstances. Biscoe, 443 N.W.2d at 224. In deciding whether there has been a substantial change, the court should look back to the time when the support obligation was last modified. Blomgren v. Blomgren, 386 N.W.2d 378, 380 (Minn. App. 1986). The party desiring a modification has the burden to show that there has been a substantial change. Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996).

Appellant contends the district court erred by determining that appellant was required to show a substantial change in circumstances since December 1997. We disagree.

Appellant first contends the district court's finding that the tax exempt status was considered in the December 1997 order of the administrative law judge (ALJ) is clearly erroneous. Appellant argues that the ALJ did not consider appellant's income in the December 1997 hearing, and under 26 U.S.C. 152(e), in order to allocate the tax exemption, the court must examine both parents' income. We disagree. While 26 U.S.C. 152(e) provides guidelines for allocating the tax exemption status between parents, courts may override those guidelines. See Kriesel v. Gustafson, 513 N.W.2d 9, 13 (Minn. App. 1994) (noting that under the statute, the custodial parent is generally entitled to claim a dependent child, but that the district court could have granted it to the noncustodial parent). Appellant cites no authority requiring the court to specifically address the parties' incomes when allocating the tax exempt status. We conclude the ALJ had legal authority to determine the tax exemption should stay with respondent.

Appellant further argues that even if the ALJ had the authority to consider the tax exempt status without considering appellant's income, the district court erred in finding the ALJ actually addressed this issue. We disagree. There is evidence in the record to support the district court's finding. The following exchange occurred at the ALJ hearing on December 5, 1997:

Q (by Mr. Stochl): Mr. Swancutt, you are allowed pursuant to your divorce decree to claim your children on the federal and state income tax return; is that correct?

A: Depends on who you listen to, the I.R.S. or the district judge.

Q: Okay. For purposes of preparing this document, are you claiming your three dependents plus yourself for income-tax purposes?

A: That's correct.

Q: And does it then calculate for you an estimate of what your federal and state income-tax return - - - income-tax liability would be for 1997?

A: Yes.

Q: And based on that, do you come up with what you believe your net monthly income from your management services is?

A: Yes, eight hundred and sixteen dollars and eighty-one cents.

Thus, there was evidence that respondent was taking the exemptions, and that respondent's net income was affected by the exemptions. Further: (1) the ALJ made a finding that respondent was entitled to take the tax exemptions; and (2) the ALJ referred to respondent's net income in arriving at the modified child support obligation figure. We conclude the record supports the district court's findings that the exemption issue was addressed in the December 1997 modification order.

Appellant argues the district court committed reversible error by applying res judicata and collateral estoppel to the ALJ's December 1997 order. We disagree. The district court did not base its decision on res judicata or collateral estoppel. Rather, the court properly concluded that because appellant failed to establish that there had been a substantial change in circumstances since the last modification order, appellant's motion for modification must be denied.

Affirmed.