In re the Marriage of: Kathy Jo Schulberg, n/k/a Kathy Jo Kern, petitioner, Respondent, vs. Bruce Reed Schulberg, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-03-183

 

In re the Marriage of:

 

Kathy Jo Schulberg, n/k/a Kathy Jo Kern, petitioner,

Respondent,

 

vs.

 

Bruce Reed Schulberg,

Appellant.

 

Filed ­­­June 3, 2003

Affirmed as modified

Harten, Judge

 

Dakota County District Court

File No. F5-93-12055

 

Bruce Reed Schulberg, 17656 Keystone Avenue, Lakeville, MN 55044 (pro se appellant)

 

Pamela Lynn Zielske, Dakota County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033; and

 

Kathy Jo Kern, 11709 Galtier Drive, Burnsville, MN 55337 (pro se respondent)

 

            Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

Appellant, a child support obligor acting pro se, challenges the district court's affirmance of the child support magistrate's decision setting the amount of child support and refusing to refund child support for a period the children spent with neither parent.  Because we see no abuse of discretion, we affirm as modified.

FACTS

 

Appellant Bruce Schulberg and respondent Kathy Kern are the parents of two daughters, now ages 13 and 15.  The parties' marriage ended in 1994 with a judgment that gave respondent physical custody.  The judgment also provided that appellant could have extended summer visitation of up to six consecutive weeks, that he was to inform respondent by 15 May if he chose to have extended visitation, and that

his child support obligation shall be reduced by 40%, to 60% of his normal rate for each week of extended visitation so long as such extended visitation lasts for more than two weeks in the summer.

 

 Appellant's child support was set at $713, which was the guideline 30% of his then net monthly income.  By 2002, his child support obligation had risen to $906 through cost of living adjustments.

            In 2002, respondent moved for an increase in child support based on an increase in appellant's income.  A child support officer had calculated appellant's annual gross income to be $72,883.20 (his bi-weekly reported income of $2,803.20 x 26).  The child support magistrate (CSM) determined that appellant's gross monthly income is $6,073 and his average net monthly income is $3,776, which yields a $1,133 monthly child support obligation; the CSM so ordered. 

Also in 2002, appellant moved for a refund of $172.29, or 40% of his weekly child support payment, on the ground that a 12-day trip the children took with their aunt, appellant's sister, was extended visitation within the meaning of the dissolution judgment.  The CSM denied appellant's motion on the ground that

he did not have the children with him, he did not allow [respondent] a weekend of visitation during this period of time and did not formally inform [respondent] that he was considering this to be "extended visitation" by May 15.

 

            Appellant sought review of the CSM's decision in the district court, which affirmed.  Appellant now argues that the district court abused its discretion in affirming both the amount of child support and the refusal to refund $172.29.[1]

 

D E C I S I O N

 

            This court reviews a district court's order confirming a CSM's decision on child support under an abuse of discretion standard.  See Ludwigson v. Ludwigson, 642 N.W.2d 441, 445-46 (Minn. App. 2002) (reviewing under an abuse of discretion standard a magistrate's decision that had been ratified by the district court). 

1.         Modification

Appellant claims that the CSM made three errors in computing his net monthly income. First, appellant argues that the magistrate ignored his monthly 401K contribution of $607.30.  The CSM deducted $462 for the 401K contribution, based on the 7.6% shown on appellant's 2001 W2 form.  Appellant claims the CSM "selected the lowest possible ‘average' for [his] allowable pension deduction in order to increase his net monthly income," but he does not claim that the magistrate did not use an allowable pension deduction. 

            Second, appellant claims that the CSM ignored his $65.72 cost for monthly medical and dental insurance for himself.  Appellant's medical insurance is $27.93 per pay period, which, multiplied by 26 and divided by 12, is $60.51 monthly.  Minn. Stat. § 518.551, subd. 5(b)(vii) (2002), provides that the cost of individual health/hospitalization coverage may be deducted from monthly income.  This would reduce appellant's net monthly income from $3,776 to $3,715.49 and would reduce his child support obligation from $1,133 to $1,115, which is still more than 20% over his previous child support obligation of $906 and meets the Minn. Stat. § 518.64, subd. 2(a)(1) (2002), standard for substantially increased earnings.  See Rogers v. Rogers, 622 N.W.2d 813, 822 (Minn. 2001) (party seeking modification establishes rebuttable presumption that existing order is unfair by showing that new order would be at least $50 and 20% higher per month).

            Third, appellant claims that the CSM erred in deducting $1,795 for federal and state taxes and social security, claiming that the tax tables would give him a monthly deduction of $1,980. There is no evidentiary support for this claim.  Moreover, the information provided by appellant's employer as to the amounts actually withheld for state and federal tax and social security indicates that appellant is entitled to a deduction of only $1,242.41.[2]  Appellant does not challenge the accuracy of his employer's report.   It is not clear why the CSM deducted $1,795 instead of $1,242.41; however, the discrepancy worked to appellant's advantage by lowering his net monthly income from $4,328.59 to $3,776, (a difference of $552.59), which respondent does not challenge on appeal. 

2.         Refund

            The dissolution judgment provides that, if the children have extended visitation, i.e., more than two weeks, with appellant, his child support obligation for those weeks is reduced by 40%.  Appellant argues that he is entitled to $172.29, or 40% of one week, because the children spent 12 days on a trip with their aunt.

But the dissolution judgment also provides that extended visitation is more than two weeks, that respondent has visitation rights during the children's extended visitation with appellant, and that appellant must notify respondent of his intent to exercise his extended visitation right.  None of these conditions pertained to the children's trip with their aunt.  Moreover, the dissolution judgment also provides that the reduction in child support is "[b]ased on the expectation that [appellant] will be meeting the financial needs of the minor children during [his extended visitation]."  The children's financial needs on the trip were met by their aunt, not by appellant.  There was no abuse of discretion in denying the motion for a reduction in child support.

Because Minn. Stat. § 518.551, subd. 5(b)(vii), provides that the cost of individual health/hospitalization coverage may be deducted from a child support obligor's monthly income, we modify appellant's child support obligation by reducing it from $1,133 to $1,115 and we affirm all other parts of the district court's order.

Affirmed as modified.

 

[1] Appellant also raises procedural arguments based on the misapprehension that a district court may not consider information provided by county child support officers unless that information is offered by an opposing party.  We have reviewed the other arguments and conclude that they are without merit.

[2]Appellant's employer said that he withheld $291.36 per pay period, or $7,575.36 per year, in federal tax, $110.06 per pay period, or $2,861.56 per year, in state tax, and $172 per pay period, or $4,472 per year, in social security.  These numbers add up to $14,908.92 per year which, divided by 12, is $1,242.41 per month.