In re the Marriage of: Laurie A. Cylkowski, petitioner, Respondent, vs. Jeffrey S. Polinchock, Appellant.

In re the Marriage of: Laurie A. Cylkowski, petitioner, Respondent, vs. Jeffrey S. Polinchock, Appellant. A05-334, Court of Appeals Unpublished, November 22, 2005.

This opinion will be unpublished and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

A05-334

 

In re the Marriage of:

Laurie A. Cylkowski, petitioner,

Respondent,

 

vs.

 

Jeffrey S. Polinchock,

Appellant.

 

Filed November 22, 2005

Affirmed
Klaphake, Judge

 

Ramsey County District Court

File No. F3-92-2956

 

Michelle L. MacDonald, MacDonald Law Firm, 4930 W. 77th Street, Suite 210, Edina, MN  55435-4808 (for respondent)

 

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

 

            Considered and decided by Klaphake, Presiding Judge, Halbrooks, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Jeffrey S. Polinchock challenges a decision by a child support magistrate denying his motion to modify his child support obligation based on a claim of substantially decreased income.  Appellant argues that the magistrate erred by using his cash flow to calculate his income and erroneously reduced his claimed monthly business expenses without explanation.  Respondent Laurie A. Cylkowski counters that the magistrate's calculation of appellant's income was proper, given the financial information provided by appellant, and that the magistrate accepted appellant's claimed monthly business expenses without reduction.

            Because the magistrate did not abuse her discretion by determining that appellant's monthly income remains well above the guideline maximum of $6,975 and in denying appellant's motion to reduce his child support obligation, we affirm.

D E C I S I O N

            This court reviews a child support magistrate's order under the same standard of review that it would use if the order had been issued by the district court.  Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000).  A district court has broad discretion in determining whether to modify child support orders, and a reviewing court will reverse only if the district court "abused its broad discretion by making a clearly erroneous conclusion that is against logic and the facts on record."  Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999) (quotation omitted).

            Modification of child support is warranted if the moving party shows a substantial change in circumstances that makes the existing child support obligation unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a) (2004).  The moving party has the burden of proof in support modification proceedings.  Bormann v. Bormann, 644 N.W.2d 478, 481 (Minn. App. 2002).  That party has a duty to provide financial information to assist the district court in making an accurate determination of income; failure to do so may justify adverse inferences.  Spooner v. Spooner, 410 N.W.2d 412, 413 (Minn. App. 1987); see Minn. Stat. § 518.551, subd. 5b (2004).

            Here, appellant sought to reduce his child support obligation based on his claim that he has experienced a substantial decrease in his income since April 2004, when he was terminated from his employment and became self employed.  In denying appellant's motion, the magistrate made the following findings:

            9.  [Appellant] submitted numerous documents in response to [respondent's] discovery, none of which were particularly useful in determining his income . . . sufficient to accurately determine a net for child support purposes.

 

            10.  [Appellant] did provide bank statements and online printouts for a US Bank checking account for the months of January through June[,] and August through October 2004.  . . .  Because [appellant's] income cannot be determined from the information provided, the Court finds that the cash flow through this account is a more accurate indication of [appellant's] earnings.

 

            11.  The bank records show average monthly deposits of $19,184.21 for the six months from 4/1/04 through 10/31/04 (excluding July, which was not provided).  The average monthly withdrawals for the same period were $20,842.06.  During the period [appellant] spent $18,864.92 on remodeling and landscaping for his home.

 

            12.  Based on the average deposits, [appellant's] total gross income is an average of $19,184 per month.  After taxes and health insurance, his average net monthly income remains well over the guidelines maximum of $6975 per month.

 

            13.  [Appellant's] monthly living expenses are $4467 for himself.  He claims an additional $4114 per month in business expenses.

Based on these findings, the magistrate determined that "[t]here has not been a substantial change in circumstances that renders the existing order unreasonable and unfair."

            Appellant first challenges the method used by the magistrate to calculate his current income, which considered his cash flow through one of his bank accounts.  He insists that the magistrate should have used the statutory method set out in Minn. Stat. § 518.551, subd. 5b(f) (2004) (defining income from self-employment as "gross receipts minus ordinary and necessary expenses").  Appellant further criticizes the magistrate's assumption that all of the deposits into his US Bank account, regardless of their source, were "income" under Minn. Stat. § 518.54, subd. 6 (2004).

            A district court is not limited to what appellant refers to as the "statutory method" of calculating a child support obligor's income.  To the contrary, a district court has broad discretion in determining the income of a self-employed obligor because "the opportunity for a self-employed person to support himself yet report negligible net income is too well known to require exposition."  Ferguson v. Ferguson, 357 N.W.2d 104, 108 (Minn. App. 1984).  The district court may consider cash flow in determining income, particularly when the calculation of an obligor's income becomes a "difficult task."  Schelmeske v. Veit, 390 N.W.2d 309, 311 (Minn. App. 1986).

            Here, the magistrate was obviously frustrated with the financial information that appellant offered and which the magistrate described as not "particularly useful" for an "accurate" determination of appellant's income.  Our review of these documents, particularly the exhibits that appellant claims prove his income and expenses, leads us to similar frustrations:  the exhibits were compiled by appellant, are not fully explained or verified by other documentation or by any detailed testimony, do not cover the entire period in question, do not appear to include all of appellant's bank accounts, and do not reach the same calculations of income and expenses that were set out by appellant in his original affidavit in support of his motion to modify.  We agree with the magistrate that this evidence was not credible and failed to satisfy appellant's burden of proving that there had been a substantial change of circumstances that rendered the existing order unreasonable and unfair.

            We therefore conclude that the magistrate properly exercised her discretion by examining the deposits made by appellant into his US Bank account, finding the average of those deposits over the seven-month period in question (April to November 2004), and determining that appellant's average cash flow through this one account was over $19,000 per month.  While appellant claims that only a portion of these deposits were available to him as income, he failed to present credible evidence of this fact in a form that the magistrate could accept as credible and that would assist the magistrate in accurately calculating his income.

            Appellant finally argues that the magistrate improperly reduced his claimed business expenses.  The magistrate, however, expressly found that appellant's monthly business expenses were $4,114, which is the figure that appellant claimed.  Thus, the magistrate did not discount any of appellant's claimed expenses and accepted the figure provided by him.

            We therefore affirm the magistrate's denial of appellant's motion to reduce his child support obligation.

            Affirmed.