In re the Marriage of: Scott Emmet Miller, petitioner, Appellant, vs. Susan Marci Alexander-Miller, Respondent.

In re the Marriage of: Scott Emmet Miller, petitioner, Appellant, vs. Susan Marci Alexander-Miller, Respondent. A05-287, Court of Appeals Unpublished, October 18, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-287

 

 

In re the Marriage of:

 

Scott Emmet Miller, petitioner,

Appellant,

 

vs.

 

Susan Marci Alexander-Miller,

Respondent.

 

 

Filed October 18, 2005

Affirmed

Lansing, Judge

 

 

Hennepin County District Court

File No. DC 248 739

 

 

Michael L. Perlman, Perlman Law Office, Woodside Office Park, 10520 Wayzata Boulevard, Minnetonka, MN 55305 (for appellant)

 

Susan M. Lach, Messerli & Kramer P.A., 1800 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for respondent)

 

 

            Considered and decided by Lansing, Presiding Judge; Stoneburner, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In this appeal from an amended marital-dissolution judgment, Scott Miller contends that the record is insufficient to support the district court's determination of his net monthly income for purposes of child support.  Because the record supports the net-income amount, the finding is not clearly erroneous, and we affirm.

F A C T S

            The judgment dissolving the marriage of Scott Miller and Susan Alexander-Miller provided that Miller and Alexander-Miller would share joint physical and legal custody of their minor child.  Under the terms of the stipulated judgment, Miller agreed to pay $1,350 a month in child support until June 30, 2002.  The judgment provided that the district court would, at that time, conduct a de novo review and impose a child-support obligation based on Miller's current income. 

The court conducted the de novo review in September 2002.  As evidence of his income, Miller submitted W-2 and 1040 tax forms from the 2000 and 2001 tax years and a paycheck from May 2002, which reflected gross annual incomes of $40,154, $44,181, and $18,800 (partial documentation), respectively.  Alexander-Miller disputed that these documents accurately established Miller's income because they failed to include a substantial number of in-kind payments made to or for Miller by his law firm in which he is a fifty-percent shareholder.  Alexander-Miller submitted copies of 107 cancelled checks issued to Miller for his net salary, car expenses, credit card charges, cell phone, medical insurance, deferred-compensation plan, and other miscellaneous expense reimbursements.  For the 2001 calendar year, the checks totaled $64,269, an average of $5,355.75 a month (salary: $34,432; automobile: $9,437; credit card: $12,329; phone: $1,002; insurance: $4,155; deferred compensation: $2,000; miscellaneous: $914).

In its findings, the district court incorporated the evidence of in-kind payments into Miller's monthly income.  But in applying the Hortis/Valento child-support formula, the district court used $5,356 as Miller's gross monthly income rather than his net monthly income and calculated his net monthly income as $3,379.  Although Miller disputes that this figure was a mistake, he acknowledges that the district court miscalculated his and Alexander-Miller's obligations under the Hortis/Valento formula by erroneously reversing the percentage of time their child spends with each parent.

In November 2002, Alexander-Miller moved under Minn. R. Civ. P. 60.01 for correction of the clerical errors in the child-support calculation.  A succeeding district court judge amended the findings to reflect that Miller's net monthly income, not gross monthly income, amounted to $5,356.  The district court also corrected the reversed percentages of custodial time attributed to each parent.  These amended findings increased Miller's child-support obligation from $202 a month to $602.16 a month. 

            Miller appeals from the amended judgment, arguing that the evidence is insufficient to support the district court's findings on Miller's net monthly income.  Alexander-Miller argues that this determination is not properly subject to review because Miller has not submitted a transcript of the proceedings.  Alexander-Miller previously moved to dismiss, alleging untimely and improper service.  In April 2005 a special-term panel of this court denied that motion.  Although Alexander-Miller's substituted counsel did not receive service, it was nonetheless effective because the motion was served on Alexander-Miller's attorney of record.  Because of outstanding motions for attorneys' fees related to the September 2002 order and to the directive in the December 2002 order to reopen and amend the judgment, the child-support decision did not become final and appealable until the amended judgment was entered in December 2004.

D E C I S I O N

I

We first address Alexander-Miller's argument that Miller's failure to provide a transcript of the proceeding precludes him from challenging the sufficiency of the evidence to support the district court's determination of his net income.  The record on appeal consists of "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings."  Minn. R. Civ. App. 110.01.  The record must be "sufficient to show the alleged errors and all matters necessary for consideration of the questions presented."  Truesdale v. Friedman, 267 Minn. 402, 404, 127 N.W.2d 277, 279 (1964).

The failure to submit a transcript can limit the scope of review on appeal.  See Alliance for Metro. Stability v. Metro. Council, 671 N.W.2d 905, 919 (Minn. App. 2003) (limiting scope of review on appeal when no transcript is provided for review of district court's conclusions of law).  This limiting principle does not, however, apply to this appeal because Miller and Miller-Alexander provided only written submissions to the district court, and the court based its findings on documentary evidence.  The failure to submit a transcript does not limit the scope of appeal because no transcript exists, and there was no proceeding to transcribe. 

II

A district court has broad discretion to provide for the support of dependent children in a marital-dissolution proceeding.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  A district court abuses its discretion when it sets support in a manner that is against logic and the facts on record or when it misapplies the law.  Id.; Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn. App. 1998).  A determination of the amount of an obligor's income for purposes of setting child support will not be altered on appeal unless it is clearly erroneous or has no reasonable basis in fact.  Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn. App. 2002).

A review of the record establishes that the district court's amended finding of Miller's net monthly income is notclearly erroneous.  For purposes of child support, "net income" includes "in-kind payments received by the obligor in the course of employment, self-employment, or operation of a business if the payments reduce the obligor's living expenses."  Minn. Stat. § 518.551, subd. 5(b)(1) (2004).  The court had ample evidence in the record to support its finding that Miller received in-kind payments and that his net monthly income was $5,356.  Although Miller provided some evidence of a possible reduction in his 2002 income, the evidence included income only from January to May 2002.  The checks that Alexander-Miller submitted were dated through June 2002 and demonstrate substantial additional income.  Miller has not disputed that he received the additional income.  The court reasonably rejected Miller's partial evidence of reduced current income because Miller's submissions were incomplete. 

The copies of the checks that Alexander-Miller submitted were specifically attributable to Miller's net income, and Miller has demonstrated no inaccuracy or error in the attribution.  The finding in the amended judgment that Miller's net monthly income is $5,356 has a logical basis in fact and is not clearly erroneous.  Using this net monthly income, the court correctly calculated Miller's child-support obligation under the Hortis/Valento formula as $602.16 a month.  The district court did not err in determining Miller's net income or abuse its discretion in calculating Miller's child-support obligation.

Affirmed.