Pennington County, Respondent, Vikki Hutchinson, Respondent, vs. Keith Matthew, Appellant.

Pennington County, Respondent, Vikki Hutchinson, Respondent, vs. Keith Matthew, Appellant. A05-1467, Court of Appeals Unpublished, May 30, 2006.

This opinion will be unpublished and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

A05-1467

 

Pennington County,

Respondent,

Vikki Hutchinson,

Respondent,

 

vs.

 

Keith Matthew,

Appellant.

 

Filed ­­­May 30, 2006

Affirmed

Harten, Judge*

 

Pennington County District Court

File No. FX-95-50190

 

Alan Rogalla, Pennington County Attorney, Box 340, Thief River Falls, MN 56701 (for respondent Pennington County)

 

Vikki Hutchinson, 525 Tonder Street, Thief River Falls, MN 56701 (pro se respondent)

 

Ronald B. Sieloff, Sieloff and Associates, P.A., Yankee Square Office III, 3460 Washington Drive, Suite 214, Eagan, MN 55122 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Dietzen, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

In this child support modification case, appellant Keith Matthew argues that the district court overstated his net income and child support obligation; he also asserts that the district court should have reopened and vacated or modified an earlier child support modification order because respondent Vikki Hutchinson made a material misrepresentation and committed fraud on the district court.  Because the district court neither clearly erred in its findings nor abused its discretion in modifying appellant's child support, and because the record lacks an actionable basis for fraud on the court, we affirm.

FACTS

The parties are the parents of the minor child, Z.T.H.  In 1998, the district court ordered appellant Keith Matthew to begin paying respondent Vikki Hutchinson $200 per month for child support.  In 2003, Hutchinson moved for an upward child support modification, alleging an increase in Matthew's income.  On 10 September 2003, at a hearing before a child support magistrate (CSM), Matthew testified that by working seasonal jobs, weekend construction, and maintaining his rental properties, he worked approximately 90 hours per week prior to July 2002.  Matthew also testified that in July 2002, he voluntarily left his seasonal jobs and became a self-employed construction worker.  The CSM imputed income to Matthew based on his 2001 and 2002 income tax returns after finding both that Matthew had not sufficiently established his 2003 income and that he was voluntarily underemployed.  By order dated 16 September 2003, the CSM modified Matthew's child support obligation to $450 per month. 

In early 2005, alleging a substantial change in his financial circumstances, Matthew moved for a downward child support modification.  At the modification hearing on 23 February 2005, he claimed that the 2003 modification was based on income from years when he was working 100 hours per week; he also asserted that he was currently self-employed and unable to satisfy his child support obligation.  Matthew submitted income tax returns for 2001, 2002, and 2003, and testified about his work and income in those years.  He also submitted a 2004 Form W-2 and testified about 2004 income from his self-employment and rental properties.  But he did not submit documentation of his 2004 self-employment or rental income.

On 1 March 2005, the CSM issued findings that Matthew was no longer voluntarily unemployed and that his monthly net income, based on his 2002 and 2003 income tax returns, was $1,560 per month.  The accompanying order reduced Matthew's child support obligation to $390 per month; the 2003 child support modification had been based on a greater net monthly income ($1,798).

On 30 March 2005, Matthew filed a pro se motion for district court review of the September 2003 and the March 2005 orders.  He requested that the court reopen and vacate or retroactively modify the 2003 order, alleging that Hutchinson made a statement at the 2003 hearing that was a material misrepresentation and constituted fraud on the court.  By order dated 20 May 2005, the district court affirmed the March 2005 order, but did not address the 2003 order.  This appeal followed.  Respondents did not file a brief or otherwise participate in this appeal.

D E C I S I O N

This court reviews the district court's order affirming the CSM's order.  Kilpatrick v. Kilpatrick, 673 N.W.2d 528, 530 n.2 (Minn. App. 2004).   "[T]o the extent the reviewer of the CSM's original decision affirms the CSM's original decision, that original decision becomes the decision of the reviewer."  Id.  Whether to modify a support obligation is discretionary with the district court, and its decision will be altered on appeal only if it resolved the matter in a manner that is against logic and the facts on record.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002); Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).  A determination of the amount of an obligor's income for purposes of child support is a finding of fact and will not be altered on appeal unless clearly erroneous.  Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn. App. 2002).  Clearly erroneous means "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole."  N. States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).        

Matthew first contends that because he was not voluntarily unemployed or underemployed, the district court erred by imputing income from his 2002 and 2003 income tax returns under Minn. Stat. § 518.551, subd. 5b(d) (2004).  But the record contains no evidence that the district court imputed income to Matthew under that statute.  On the contrary, the district court found that Matthew was "making a good faith effort to earn the greatest income he is capable of earning" and that he "does not appear to be voluntarily underemployed at this time."  Based on the record, Matthew's imputation of income claim fails. 

Matthew next asserts that the district court erred by relying on his 2002 and 2003 income tax returns, rather than his own income estimates, to determine his earning capacity and net income.  We disagree.  "Current net income must be determined for purposes of setting child support."  Merrick v. Merrick, 440 N.W.2d 142, 146 (Minn. App. 1989).  When determining a party's ability to comply with a child support order, the district court may properly consider earning capacity and earnings history.  LeTendre v. LaTendre, 388 N.W.2d 412, 416 (Minn. App. 1986).  And a district court may set a support obligation based on an obligor's earning capacity if it is impracticable to determine the obligor's actual income.  Beede v. Law, 400 N.W.2d 831, 835 (Minn. App. 1987). 

Evidence of Matthew's income consisted of his 2002 and 2003 income tax returns, his 2004 Form W-2, his January 2005 affidavit, and his testimony at the 2005 hearing.  In an affidavit, Matthew alleged that he earned $14,448 in 2004 as a seasonal worker for Elk River Concrete.  But the only documentation of Matthew's 2004 income is his Form W-2 from Cretex Concrete Products North, Inc., reflecting an income of $9,415.69.[1]  At the 2005 hearing, Matthew testified that he had self-employment income of $9,500 in 2004.  Matthew did not provide documentation of his alleged earnings of $14,448 from Elk River Concrete or his self-employment.  His Form W-2 contradicted his affidavit and testimony as to source and amount of income.  Because of the tenuous nature of Matthew's evidence regarding his 2004 income, the district court did not clearly err by relying on Matthew's 2002 and 2003 income tax returns.  See Minn. Stat. § 518.551, subd. 5b(a) (2004) (parties must timely serve and file documentation of earnings and income); Varner v. Varner, 400 N.W.2d 117, 121 (Minn. App. 1987) (factfinder "is not required to accept even uncontradicted testimony if the surrounding facts and circumstances afford reasonable grounds for doubting its credibility") (citing Waite v. Am. Family Mut. Ins. Co., 352 N.W.2d 19, 22 (Minn. 1984)). 

Matthew also contends that the district court overstated his net monthly income for support purposes because he was working 90 to 100 hours per week during 2002 and 2003, and support should be based on a 40-hour work week. 

On a motion for modification of support, the court . . . shall not consider compensation received by a party for employment in excess of a 40-hour work week, provided that the party demonstrates, and the court finds that . . . the excess employment began after entry of the existing support order. . . .

 

Minn. Stat. § 518.64, subd. 2(c)(2)(i) (2004).  Matthew has asserted that he worked 90 to 100 hours per week in 2001, 2002, and 2003.  But because any excess hourly employment did not occur after the 2003 support modification, the district court did not err by considering all of Matthew's earnings.

            Finally, because there is no demonstrated evidentiary foundation in the record for Matthew's assertions of respondent's material misrepresentation or fraud on the court, we reject those claims.

            Affirmed.

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

[1] Matthew's testimony suggests that Elk River Concrete and Cretex Concrete Products North, Inc. are the same entity.