In re the Marriage of: Jennifer Louise Weiss, petitioner, Respondent, vs. William John Weiss, Appellant.

In re the Marriage of: Jennifer Louise Weiss, petitioner, Respondent, vs. William John Weiss, Appellant. A06-2433, Court of Appeals Unpublished Decision, December 24, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2433

 

In re the Marriage of:
 
Jennifer Louise Weiss, petitioner,
Respondent,
 
vs.
 
William John Weiss,
Appellant.

 

Filed December 24, 2007

Affirmed

Kalitowski, Judge

 

Washington County District Court

File No. F7-01-3343

 

James J. Lawton, III, Lawton Law Office, 1100 West Seventh Street, St. Paul, MN 55102

(for respondent)

 

William J. Weiss, 128 Birch Drive Northeast, Forest Lakes, MN 55025 (pro se appellant)

 

            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Hudson, Judge. 

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant William J. Weiss challenges the district court's order denying his motion to modify his child-support obligation.  We affirm.                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

 

D E C I S I O N

            On appeal from the district court's denial of his motion to modify his child-support obligation, pro se appellant William J. Weiss argues that the district court erred by (1) failing to make factual findings regarding appellant's current net income; (2) finding that appellant did not meet his burden of showing a substantial change of circumstances warranting modification of his child-support obligation; (3) determining that the parties' 2002 child-support stipulation precluded an analysis of whether appellant's current net income qualifies as a significant change in circumstances; (4) overstating respondent's gross income by including excess, speculative employment; and (5) deciding that appellant's 401(k) payments did not constitute a reasonable pension deduction.  Because appellant failed to put forth sufficient evidence to prove a substantial change in circumstances, we affirm the district court. 

When reviewing on appeal a district court decision that confirms a child-support magistrate's order, this court applies an abuse-of-discretion standard.  Putz v. Putz, 645 N.W.2d 343, 347-48 (Minn. 2002); Davis v. Davis, 631 N.W.2d 822, 826 (Minn. App. 2001).  And the district court's discretion must be exercised within the limits set by the legislature.  Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).  Accordingly, modification of child support is an issue within the discretion of the district court that will not be altered on appeal absent a result "against logic and the facts on record."  Putz, 645 N.W.2d. at 347.  Furthermore, "[t]he moving party has the burden of proof in support-modification proceedings."  Bormann v. Bormann, 644 N.W.2d 478, 481 (Minn. App. 2002).

I.

Appellant alleges that the district court made inadequate findings of fact to support its denial of his motion to modify child support.  But because the record indicates that appellant failed to provide sufficient evidence to prove the amount of his current net monthly income, we disagree.  See Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003) (stating "[o]n appeal, a party cannot complain about a district court's failure to rule in [his] favor when one of the reasons it did not do so is because that party failed to provide the district court with the evidence that would allow the district court to fully address the question").

Child-support payments may be modified if a movant shows that the existing support order's terms are unreasonable or unfair because of (1) a substantial increase or decrease in earnings; (2) a substantial increase or decrease in the need of a party or child; (3) the receipt of public assistance; or (4) a change in the cost of living.  Minn. Stat. § 518.64, subd. 2(a) (2004).[1]  Moreover:

            It is presumed that there has been a substantial change in circumstances . . . and the terms of a current support order shall be rebuttably presumed to be unreasonable and unfair if . . . the application of the child support guidelines . . . to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $50 per month higher or lower than the current support order[.]

 

Minn. Stat. § 518.64, subd. 2(b) (2004).

            A district court is required to consider appropriate factors and make specific findings in addressing a party's motion for child-support modification.  Moylan, 384 N.W.2d at 863, 865.  Thus, when modification is appropriate, the district court uses the statutory guidelines and calculates the presumptively appropriate child-support obligation based on obligations on a percentage of the obligor's net monthly income.  Minn. Stat. §§ 518.64, subd. 2(b), .551, subd. 5(b) (2004).  Net income is defined as an obligor's "[t]otal monthly income" less:

(i)                Federal Income Tax

(ii)             State Income Tax       

(iii)           Social Security Deductions

(iv)           Reasonable Pension Deductions

(v)              Union Dues

(vi)           Cost of Dependent Health Insurance Coverage

(vii)         Cost of Individual or Group Health/ Hospitalization

            Coverage or an Amount for Actual Medical Expenses

(viii)      A Child Support or Maintenance Order that is Currently Being Paid                 

 

Minn. Stat. § 518.551, subd. 5(b). 

 

            Here, although the parties previously stipulated in their divorce decree to appellant's gross annual income and net monthly income, in denying appellant's motion for modification the district court did not make specific findings regarding appellant's current net monthly income.  But since weighing evidence and witness credibility is the province of the fact-finder, it was within the district court's discretion to decide to reject evidence of appellant's net monthly income.  Here, the record indicates that appellant presented pay stubs from only three pay periods for all of 2005 and 2006, and that respondent presented additional pay stubs subpoenaed from appellant's employer illustrating the seasonal nature of appellant's work, the variance in his pay scale, and his routine engagement in overtime work.  Thus, on this record we will not alter the district court's determination that appellant did not present sufficient evidence of his total monthly income for the district court to make findings regarding his current net monthly income.  Accordingly, the district court's failure to make findings as to appellant's current net monthly income did not constitute an abuse of discretion. 

II.

Appellant also contends that the district court clearly erred in finding that he failed to prove a substantial change in circumstances.  But because appellant did not establish the statutorily mandated criteria for triggering modification of his child-support obligation, we disagree.

If a child-support obligor's income fluctuates, an income-averaging method takes into account fluctuations and provides a more accurate measure of his income.  Veit v. Veit, 413 N.W.2d 601, 606 (Minn. App. 1987).  Because appellant failed to put forth sufficient evidence of his net monthly income, the district court instead based its analysis of appellant's motion for modification on appellant's gross annual income.  Given the seasonal nature of appellant's work, his union's requirement that he take off unpaid vacation and holiday time, the variance in his pay scale, and his routine engagement in overtime work, it was reasonable for the district court to determine that an income-averaging method would provide a more accurate measure of appellant's income.

Here, the district court found that appellant received a gross annual income of $75,868 in 2002 at the time of his divorce, $78,713.53 in 2005, and a projected $77,427.14 in 2006 based on his year-to-date income.  Further, the record shows that no income information was available for appellant from 2003 and 2004.  Because the downward change in appellant's gross annual income from 2005 to 2006 amounted to far less than the 20% change cited in the statute, the district court did not clearly err in finding that appellant failed to prove a "substantial change in circumstances" sufficient to trigger modification of his child-support obligation.  Minn. Stat. § 518.64, subd. 2(b).

III.

            Appellant argues that the district court abused its discretion by ignoring the statutory-modification process and instead finding that appellant was not entitled to a modification of his support obligation because of a contrary stipulation in the parties' marital-termination agreement.  But appellant cannot simply substitute a different method of calculating support in an attempt to justify modification of the terms set forth in the parties' stipulated agreement.  Because the parties' original stipulation did not take into consideration the fact that appellant's union job requires him to take unpaid vacation and holiday time, appellant cannot later insist on a recalculation of his support award reflecting this shorter, 44.8-week-per-year work schedule.

            Moreover, even if appellant proved a substantial change in circumstances, appellant's modification argument fails because he did not demonstrate that his existing child-support obligation is unreasonable and unfair.  Bormann, 644 N.W.2d at 481; Stephens v. Stephens, 407 N.W.2d 468, 470-71 (Minn. App. 1987).  Because appellant worked the same 44.8-week-per-year schedule at the time the parties entered into their stipulation as he did when he later moved for modification, the district court did not abuse its discretion in deciding that not recalculating appellant's support obligation based on this preexisting, unchanged factor would not be unreasonable or unfair. 

IV.

            Appellant contends that the district court abused its discretion by including overtime pay in its calculation of his income for purposes of determining his child-support obligation.  We disagree.  Because appellant's modification argument fails, this issue is moot.  But even if appellant were able to prove that a substantial change in circumstances triggered his right to modification, the district court did not abuse its discretion by including overtime pay in its determination of appellant's gross income.

A party seeking to exclude overtime wages from a calculation of child support has the burden of demonstrating that the wages qualify for the statutory exemption.  Minn. Stat. § 518.64, subd. 2(c)(2) (2004).  One of the elements the party must prove to the district court is that "the excess employment began after entry of the existing support order . . . ."  Id. And the decision to include overtime compensation in the obligor's income ultimately lies within the district court's discretion.  Strauch v. Strauch, 401 N.W.2d 444, 447 (Minn. App. 1987).  Here, because the record shows that overtime hours were included and relied on by the district court in its original calculation of  appellant's child-support obligation, the district court did not abuse its discretion by including overtime pay in its calculation of appellant's gross income.  Justis v. Justis, 384 N.W.2d 885, 890-91 (Minn. App. 1986) (including overtime income in child-support calculations when it was a regular source of the obligor's income), review denied (Minn. May 29, 1986). 

V.

 

Appellant further argues that his 401(k) payments should qualify as a reasonable pension deduction and thereby provide him with a deduction for purposes of determining his child-support obligation.  We disagree.  Again, because appellant's modification argument fails, this issue is moot.  But even if appellant were able to prove that his right to modification was triggered, the district court did not abuse its discretion by determining that it was unreasonable for appellant to take an additional pension-payment reduction from his gross income.

"Reasonable [p]ension [d]eductions" is a statutorily permitted deduction set forth in the child-support guidelines.  Minn. Stat. § 518.551, subd. 5(b).  The "reasonableness" of an obligor's pension deduction may be established in a variety of ways, including comparing the obligor's contribution with the average 401(k) contribution of other employees at his place of employment or comparing the obligor's contribution with his employer's contribution and examining the total of those contributions.  State, County of St. Louis ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 471 (Minn. App. 1999).

Here, in the 2002 order the district court found that appellant had three sizeable pension plans through his union membership that qualified as reasonable pension deductions, and thus were excluded from being considered part of his gross income for child-support purposes.  Appellant was not making payments into a 401(k) plan at the time of his original divorce decree.  Accordingly, the district court did not abuse its discretion in finding that, in light of the parties' and the children's respective needs, it was unreasonable for appellant to take an additional pension-payment reduction from his gross income.

            Affirmed. 

 

[1] The legislature has since changed and recodified the child-support statute in chapter 518A.  The new law is effective to calculate child support for filings after January 1, 2007.  2006 Minn. Laws ch. 280, § 32, at 1145.  This court applies the law in effect at the time that the district court issues its decisions unless doing so would be unjust.  See McClelland v. McClelland, 393 N.W.2d 224, 226-27 (Minn. App. 1986), review denied (Minn. Nov. 17, 1986).