Michele T. Barker, n/k/a Michele T. Obermeier, Respondent, v. Gunnar B. Barker, n/k/a Gunnar Barker Soderlind, Appellant.

Michele T. Barker, n/k/a Michele T. Obermeier, Respondent, v. Gunnar B. Barker, n/k/a Gunnar Barker Soderlind, Appellant. A05-1962, Court of Appeals Unpublished, July 11, 2006.

This opinion will be unpublished and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

A05-1962

 

Michele T. Barker,

n/k/a Michele T. Obermeier,

Respondent,

 

v.

 

Gunnar B. Barker,

n/k/a Gunnar Barker Soderlind,

Appellant.

 

 

Filed July 11, 2006

Affirmed in part, reversed in part, and remanded

Ross, Judge

 

Scott County District Court

File No.: 70-1996-12628

 

Michael C. Black, Michael C. Black Law Office, Ltd., 265 West 7th Street, Suite 201, St. Paul, MN 55102 (for respondent);

 

Gunnar B. Soderlind, 2140 E. Southlake Boulevard, Suite L-447, Southlake, TX 76092 (appellantpro se)

 

Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

In this appeal, we consider a child-support magistrate's modification of appellant father's child-support obligation.  He contests the district court's adoption of a child-support magistrate's order in which the magistrate modified child support based on the finding that the father's income had increased substantially.  Because we conclude that the district court abused its discretion in its imputation of income to the appellant father as a basis for the child-support amount, we affirm in part, reverse in part, and remand for further proceedings.

FACTS

Appellant Gunnar Soderlind and respondent Michele Obermeier were married from 1985 until 1998.  They had three children together, and Soderlind's two children from a previous marriage also lived with the family.  Obermeier had primary physical custody of all the children after the couple's dissolution, including Soderlind's children, who reached the age of majority before the matters arose related to this appeal.  The parties' 1998 dissolution decree required Soderlind to pay Obermeier $2,500 in monthly child support.  At the time, Soderlind was employed in the then-lucrative computer programming industry.

In March 2003, the parties entered a stipulation to modify Soderlind's child-support obligation and the district court adopted that stipulation.  The amended judgment and decree recognized that Soderlind's children had attained majority, acknowledged his unemployment, found that the current amount of support was unreasonable and unfair, and provided that he "may pay interim child support at a reduced rate, based upon his unemployment compensation benefits, until such time as he attains employment."  The parties therefore agreed to reduce Soderlind's child-support obligation to $602.12 monthly.  The amended decree provided that Soderlind's "interim child support obligation shall continue through April 30, 2003, at which time the parties shall review and reconsider . . . the obligation," and that, should either party move the court to modify child support, the court "may review [Soderlind's] child support obligation as of December 1, 2002, and thereafter, nunc pro tunc."

In December 2004, Obermeier moved the court to modify the support obligations in the March 2003 amended decree, reasoning that Soderlind's "contribution to the support of the three children is minimal and significantly less than he is capable of earning," and she requested income and expense information from Soderlind and his new wife, Monica.  Soderlind countered, requesting that the court not change the existing support and declaring his continued unemployment.  Both parties appeared at the February 2005 hearing.  Obermeier appeared in person and pro se; Soderlind appeared pro se by telephone from his home in California.  Soderlind argued that the court should not require him to submit income tax documents as proof of income because they also included irrelevant evidence of Monica's income.

In a March 2005 order, the child-support magistrate found that Soderlind had "a few consulting contracts in 2004, one of which was through his wife's business."  The magistrate informed him that failure to provide necessary documentation of income could result in an imputation of income to him.  The magistrate continued the hearing until May 13 and ordered Soderlind to provide to Obermeier and the magistrate "at least 15 days before the next hearing, copies of his 2003 and 2004 income tax returns with all schedules, worksheets, 1099s and W-2s."

Obermeier attended the May 2005 hearing, but the court was unable to reach Soderlind at the telephone number he provided.  After the hearing, the magistrate found that Soderlind was employed as a financial consultant, but had provided no credible evidence of his current income, and that it was therefore appropriate to determine his income based on past earnings.  Using income information from 1999-2002 social security statements,[1] the magistrate found that Soderlind can earn a net monthly income of $4,353.  The magistrate compared that figure with Obermeier's verified net monthly income and ordered Soderlind to pay $1,524 in monthly child support until the emancipation of their oldest child, and $1,306 thereafter, pursuant to Minnesota Child Support Guidelines.

Soderlind filed a motion for review on August 3, 2005, asking the district court to correct the June order of the child-support magistrate.  Soderlind insisted that the magistrate had erroneously disregarded the depression in the software consulting industry, rendering his pre-2002 income a mistaken base from which to estimate his current earning capacity.  The district court denied the motion in summary fashion, finding without discussion that the magistrate had made a thorough review of the record, that the findings were supported by the record, and that the decision was not contrary to the law.  Soderlind appeals from the district court's denial of his motion for review.

 

D E C I S I O N

Soderlind contests the district court's child-support determination.  Whether to modify support is discretionary with the district court, and we will reverse that exercise of discretion only if we are convinced that the court reached "a clearly erroneous conclusion 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).  Soderlind raises four issues to challenge the district court's exercise of discretion in increasing his support obligation from the level established in the March 2003 amended decree.  He argues that the district court: (1) improperly calculated his income because it did not consider all of the evidence; (2) improperly rejected income tax documents he submitted before the hearing; (3) used evidence against him that it had already rejected; and (4) violated his current wife's right to privacy by including her salary information in the record.

Calculation of income

Soderlind contends that the district court improperly calculated his income because it did not consider all of the evidence and did not use his actual income as a basis for the child-support modification.  If the district court "finds that a parent is voluntarily unemployed or underemployed or was voluntarily unemployed or underemployed during the period for which past support is being sought," it calculates support "based on a determination of imputed income."  Minn. Stat. § 518.551, subd. 5b(d) (2004).  In her June 2005 order, the child-support magistrate found that because Soderlind had "provided no credible evidence of his current income, it is appropriate to calculate his income based on his past earnings."   See Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996) (providing that income may be imputed when it is impracticable to determine).  The magistrate found, based on past income figures in his social security statements, that Soderlind could earn $71,347 annually based on average gross income from 1999 to 2002.

The terms of the March 2003 amended decree offer some guidance as to a proper basis to determine Soderlind's income.  In dissolution cases, "when a stipulation fixing the respective rights and obligations of the parties is central to the award, the trial court reviewing the original order or decree should view it as an important element because it represents the parties' voluntary acquiescence in an equitable settlement."  Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981).  In the amended decree, the parties "suspended" Soderlind's original child-support obligation, declared that the reduced obligation was "an interim level of child support only," deemed the interim agreement valid for a period of approximately four months, and empowered either party to seek relief through a motion to modify child support if they were unable to agree on future support.  The amended decree also provided that court review of Soderlind's child-support obligation may consider the obligation nunc pro tunc.  See Black's Law Dictionary 1097 (7th ed. 1999) (translating "nunc pro tunc" as "now for then" and meaning "[h]aving retroactive legal effect through a court's inherent power").

Neither the magistrate's March 2005 nor June 2005 findings specifically acknowledge the retroactivity discussed in the amended decree.  Obermeier testified at the May 2005 hearing that Soderlind "went through a difficult time," and she agreed to reduce his obligation but she wanted to "continue to hold him accountable to his income."  The magistrate stated that she was by law "forbidden to base support on Mr. Soderlind's current wife's income [but that she] still [had] some leeway to determine what Mr. Soderlind's income is or should be."  While the magistrate never explicitly relied on the term nunc pro tunc in the amended decree, it appears the magistrate modified Soderlind's obligation based on his income level as it was before the parties' interim agreement.

Soderlind's appeal is complicated by his failure to comply with the discovery requirements of the March 2005 continuance order and his failure to appear at the May 2005 hearing.  The magistrate indicated that she attempted to reach him by telephone four times without success and that on the final call left the message that the hearing would proceed without him.  When a party fails to properly serve or file responsive documents, the district court may consider a matter unopposed.  Minn. R. Gen. Pract. 303.03(b).  And failure to appear at a scheduled hearing may result in partial relief to the appearing party, striking of the non-appearing party's pleadings, or other relief the court finds appropriate.  Minn. R. Gen. Pract. 307(a).

Nonetheless, we cannot affirm the decision to impute income from the information the district court relied on.  We address below the issue of Soderlind's timely and sufficient submission of income information, but we note that the record contains 2004 tax returns and schedules for Gunnar and Monica Soderlind.  The magistrate found that Gunnar Soderlind was employed by his wife's business, and we are convinced that a better estimate of his income can be drawn from those documents.  We recognize that the magistrate's ability to piece together an accurate financial picture was sharply limited by Soderlind's failure to appear at the May 2005 hearing, his apparent failure to provide 2003 tax returns, and his failure to provide other information to Obermeier as well as to the magistrate.  But in light of the facts before the district court, continuing to rely on figures from a period when Soderlind was employed at an income level that he argues (without dispute) is no longer feasible due to the significant depression in the job market is beyond the district court's discretion in imputing income.  See Minn. Stat. § 518.551, subd. 5b(d) (identifying factor critical to imputation analysis as the "availability of jobs within the community for an individual with the parent's qualifications").  We do not read the parties' reference to nunc pro tunc to suggest or consent to this approach.  We therefore reverse the district court's support order and remand for further proceedings consistent with our opinion.

Rejection of evidence

Soderlind argues that the income tax documents he submitted to the court along with a letter dated May 5, 2005, should have been accepted by the court.  He cites Minn. R. Gen. Pract. 364.10, subd. 4, which states that a "child support magistrate may take judicial notice of facts not subject to reasonable dispute."  He also cites Minnesota's evidentiary rules under the Uniform Interstate Family Support Act, which provide that "[a] verified petition, affidavit, document substantially complying with federally mandated forms, and a document incorporated by reference in any of them, not excluded under the hearsay rule if given in person, is admissible in evidence if given under oath by a party or witness residing in another state."  Minn. Stat. § 518C.31(b) (2004).

Our review of the record informs us that the tax records submitted to the magistrate are a part of the trial record, and we have no reason to conclude that the magistrate rejected their submission.  The magistrate stated during the May 2005 hearing that she returned Soderlind's motion for review of the March 2005 continuance order and the accompanying filing fee because the motion was late and unnecessary.  But the magistrate stated that the court had received "what appears to be a complete copy of his tax return," noted that Obermeier "did not receive anything approaching the complete tax return," and stated that Soderlind had therefore not complied with the terms of the March 2005 order.  Because copies of those tax documents are in the record, we conclude that Soderlind's argument lacks merit.

Use of excluded evidence

Soderlind argues that the magistrate relied on evidence that he submitted prior to the hearing, and he maintains that the evidence was never offered to and received by the court as required by Minn. R. Gen. Pract. 364.10, subd. 2.  As previously noted, the magistrate stated during the May 2005 hearing that she had received "what appears to be a complete copy of his tax return" sent by Soderlind.  His 2005 social security statement, which the magistrate used to compute his income, is also included in the record along with his 2004 tax return.  Soderlind's May 5, 2005 letter to the magistrate contained Soderlind's tax and expense information for 2004 and 2005, information that the magistrate ultimately found not to have been provided to Obermeier as required by the March 2005 continuance order.  The cited rule provides that "[a]ll pleadings and supporting documentation previously served upon the parties and filed with the court, unless objected to, may be considered by the magistrate."  Id.  But because our decision will allow the district court to examine this information as a basis for the calculation of Soderlind's income, an approach that he urges in his other arguments, we do not address the alleged procedural defect.

Right of privacy

Soderlind argues that the magistrate violated Monica Soderlind's right to privacy by revealing her income information in an order.  The March 2005 continuance order acknowledged Soderlind's argument that his wife's income is irrelevant to his ongoing child-support obligation, but it also directed him to provide 2003 and 2004 returns and stated that "no [r]edactions shall be made from the documents other than removal of social security numbers."  At the May 2005 hearing, the magistrate determined that Soderlind's request that information about his wife's income not be disclosed to Obermeier was "not acceptable" and not in compliance with the March 2005 continuance order.  In her June 2005 order, the magistrate considered Soderlind's wife's income and found that the couple "may be attributing excessive earnings to [Soderlind's] wife in order to make [Soderlind's] income appear lower than it actually is" and that "the 2004 income figures are not a credible reflection of [Soderlind's] disposable earnings."

We do not explore the questionable merit of Soderlind's privacy argument.  He provides no legal authority for the proposition that the child-support magistrate's inclusion of income information in a court order affected any rights reviewable by this court.  More fundamentally, we find no indication that he has standing to assert such a claim on his wife's behalf if one exists.  See State by Humphrey v. Philip Morris Inc., 551 N.W.2d 490, 493 (Minn. 1996) ("Standing is the requirement that a party has a sufficient stake in a justiciable controversy to seek relief from a court.").  We reject Soderlind's assertion that the magistrate violated his wife's privacy rights by disclosing her income in an order.

Affirmed in part, reversed in part, and remanded.

[1]   As Obermeier indicates in her brief, the court's stated basis was the years 1999-2000, but the figures provided in the order reflect the court's consideration of income through 2002.