In re the Matter of: Michelle L. Huffman, petitioner, Respondent, vs. Jeffrey S. Jungwirth, Appellant.

In re the Matter of: Michelle L. Huffman, petitioner, Respondent, vs. Jeffrey S. Jungwirth, Appellant. A05-458, Court of Appeals Unpublished, May 16, 2006.

This opinion will be unpublished and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

A05-458

 

In re the Matter of:

Michelle L. Huffman, petitioner,

Respondent,

 

vs.

 

Jeffrey S. Jungwirth,

Appellant.

 

Filed May 16, 2006

Affirmed

Shumaker, Judge

 

Hennepin County District Court

File Nos. PA 18386, SP 235863

 

 

 

Michelle L. Huffman, P.O. Box 385812, Bloomington, MN 55438 (pro se respondent)

 

Paul R. Carlson, P.O. Box 23011, Minneapolis, MN 55423 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant challenges the district court's order denying his motion for modification of child support after the district court determined that there has not been a substantial change in circumstances rendering the existing order unfair.  Because we find no error, we affirm. 

FACTS

Appellant Jeffery Jungwirth was adjudicated the father of respondent Michelle Huffman's two minor children and ordered to pay child support.  Jungwirth has been self-employed at all times relevant to these proceedings. 

In December 2003, the district court, through a referee of family court, modified Jungwirth's child-support obligations to reflect split custody of one child.  At the modification hearing, Jungwirth argued that, because his businesses were doing so poorly, he had not paid himself a salary in several months and therefore could not afford child support.  The referee found that Jungwirth's evidence regarding his income was "problematic, at best" and questioned how Jungwirth could afford a home valued at approximately $500,000 when he had no earnings and his wife's annual income was only $38,000.  The referee concluded that Jungwirth's evidence was not credible and determined that the most reliable evidence of Jungwirth's income was his W-2 statement from 2002, which reflected a gross income consistent with his income in 1998, the date of the original child-support order.  The referee adjusted the child support to reflect split custody. 

Although Jungwirth did not appeal the referee's decision, he failed to pay any child support.  After receiving a notification of the state's intent to suspend his driver's license because of his child-support arrearages, Jungwirth moved the Child Support Magistrate (CSM) for a downward modification of child support, arguing that the December 2003 order used information from his 1998 income rather than using his 2002 W-2 as controlling evidence of income.

At the modification hearing, Jungwirth argued that his salary for 2003 was only $11,250 and presented testimony from his accountant.  Jungwirth testified that his business was operating at a loss and that he expected an annual income of zero for 2004.  His accountant testified that Jungwirth supplied all documentation and that he was not aware if Jungwirth received any in-kind benefits from his business. 

            The CSM then asked Jungwirth what had changed since the December 2003 order, and Jungwirth admitted that he could not "say honestly that a whole lot of things have changed."  He testified that he did not receive a check from his business in December 2003 or in June 2004, the time of the hearing.  The CSM denied the motion, finding that Jungwirth failed to demonstrate a substantial change in circumstances rendering the existing order unreasonable and unfair, and that Jungwirth's testimony regarding his income was not credible.  Jungwirth now appeals. 

D E C I S I O N

Jungwirth argues that he presented sufficient evidence to the CSM to show a substantial change in circumstances justifying a modification of child support and that the CSM erred by not believing the evidence.  This court reviews a CSM'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).  Determination of the amount of an obligor's income for purposes of child support will not be altered on appeal unless clearly erroneous.  Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn. App. 2002).  Modification of child support is warranted if the moving party shows a substantial change in circumstances that renders the existing child-support obligation unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a) (2004).  Appellate courts defer to the district court's credibility evaluations.  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000); Minn. R. Civ. P. 52.01 ("[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses"). 

Much of what Jungwirth argues on appeal had already been decided by the referee in 2003.  For example, Jungwirth asserts on appeal that he cannot afford the child support because he has only received $11,250 in income from his businesses.  Yet the referee determined that Jungwirth's evidence was not credible.  Jungwirth did not assert anything new to the CSM at the modification hearing.  Furthermore, Jungwirth even conceded to the CSM that there has not been a change in circumstances between the December 2003 order and the June 2004 modification hearing. 

Jungwirth next contends that the CSM erred by not believing his evidence.  But this argument centers on the CSM's credibility determinations, and we give deference to the CSM who was present to hear the testimony and observe the witnesses.  Jungwirth has shown no reason that such deference should not be paid to the CSM.

Jungwirth lastly argues that there has been a substantial change in circumstances because one child resides with him full time.  But this fact was already taken into account in the December 2003 order when the referee recalculated Jungwirth's child-support obligations based on the child's preference to live with Jungwirth.  There has not been a change in circumstances regarding the children's residency to warrant a modification. 

            Affirmed.

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