In Re the Marriage of: Adrianne VanderBorght Jackson, petitioner, Respondent, vs. Marshall B. Jackson, Appellant.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480 A. 08, subd. 3 (1994) State of Minnesota in Court of Appeals C1-96-488 In Re the Marriage of: Adrianne VanderBorght Jackson, petitioner, Respondent, vs. Marshall B. Jackson, Appellant. Filed October 15, 1996 Affirmed Schumacher, Judge Ramsey County District Court File No. F891738 John P. Guzik, Guzik Law Office, 2353 Rice Street, Suite 203, Roseville, MN 55113 (for Respondent) Kenneth R. Hertz, Hertz and Associates, 4001 Stinson Boulevard, Suite 312, St. Anthony, MN 55421 (for Appellant) Considered and decided by Harten, Presiding Judge, Schumacher, Judge, and Foley, Judge.(1) [Footnote] (1)Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. Unpublished Opinion SCHUMACHER, Judge (Hon. Vicki E. Landwehr, District Court Trial Judge) Appellant Marshall B. Jackson (father) challenges his increased child support obligation claiming that the administrative law judge (ALJ) erred by estimating his income based on his lifestyle, not reducing his income for depreciation expenses, making insufficient findings, and ordering him to reimburse respondent Adrianne VanderBorght Jackson (mother) for medical expenses. We affirm. Facts The stipulated 1992 judgment dissolving the parties' marriage awarded mother physical custody of the parties' child, estimated father's net monthly income to be $1,600, set support at $400 per month, ordered mother to provide medical insurance for father and the child, and ordered father to reimburse mother for his medical costs as well as his share of the child's medical costs. In September 1995, the county informed father that he was in arrears in medical support. Father moved for reduced support and a finding that no arrears existed. Mother sought increased support and medical-support arrears. In a February 1, 1996, amended order, the ALJ estimated father's monthly income, based on his lifestyle, to be ``at least $2,500.00,'' set support at the guideline level of $625 per month, and set father's medical-support arrears at $3,581.80. Decision The district court has broad discretion when modifying child support and will not be reversed absent a clearly erroneous conclusion that is against logic and the facts on record. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). That this case was heard by an ALJ does not alter this analysis. See Minn. Stat. § 518.5511, subd. 4(e) (Supp. 1995) (with exceptions not relevant here, administrative hearings in family matters are governed by chapter 518, family court rules, and rules of civil procedure). 1. Father claims that the ALJ erred by considering his lifestyle when estimating his income for support purposes. A finding of income for support purposes will be affirmed if it has a reasonable basis in fact. Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987). If a support obligor's income is hard to determine or does not accurately represent the obligor's ability to pay support, the obligor's lifestyle may be considered. See Marx v. Marx, 409 N.W.2d 526, 529 (Minn. App. 1987) (``assets and resources of a sole business owner'' may be considered when estimating income ``if the figures offered do not comport with evidence of that person's lifestyle'').(1) [Footnote] (1)We note that Marx has been discussed by the commentators. See 70 A.L.R. 4th 163 (1989) (reprinting case); Alan Stephens, Annotation, Divorce and Separation: Attributing Undisclosed Income to Parent or Spouse For Purposes of Making Child or Spousal Support Award, 70 A.L.R. 4th 173 (1989). Relying in part on information in mother's affidavits, the ALJ found father's net monthly income difficult to determine, rejected father's claim that his taxable income reflected his net monthly income for support purposes, refused to treat father and his business as separate entities, and rejected a tax-based net-income calculation.(2) [Footnote] (2)Father claims that the ALJ erred in relying on mother's affidavits because it precluded him from cross-examining mother about the claims in her affidavits. Absent ``good cause shown,'' family court motions are submitted on the documentary record. Minn. R. Gen. Pract. 303.03(d). Here, neither party's motion sought an evidentiary hearing and the lack of an evidentiary hearing addresses father's claims that the ALJ erred in (a) finding the expenses claimed in his affidavits not credible while finding those in mother's affidavits credible; and (b) finding a ``substantial improvement'' in his financial position since the judgment. The conflicts in the parties' affidavits presented the ALJ with credibility questions on which we defer to the ALJ. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to trial court credibility determinations); Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959) (appellate courts defer to trial court resolution of fact issues presented by conflicting affidavits). Father challenges several of the ALJ's findings. The record contains evidence that could support father's claims but also contains evidence to support the ALJ's findings. Thus, the findings are not clearly erroneous. See Minn. R. Civ. P. 52.01 (findings of fact not set aside unless ``clearly erroneous''); Stiff v. Associated Sewing Supply Co., 436 N.W.2d 777, 779-80 (Minn. 1989) (if evidence conflicts, appellate court will not alter findings merely because it might have found facts differently in the first instance). The ALJ did not abuse her discretion in making the ultimate finding that father's net monthly income is hard to determine, and hence that his lifestyle may be considered in estimating his income,(3) [Footnote] (3)In finding father's net monthly income, the ALJ generally considered father's taxes but did not find a specific amount of taxes. Father claims this was error. See Minn. Stat. § 518.551, subd. 5(b) (Supp. 1995) (taxes are deducted from gross income to find net income). Because taxes depend on income and father's income is difficult to determine, we reject father's claim. nor in refusing to treat father and his real estate business separately. See Schelmeske v. Veit, 390 N.W.2d 309, 312 (Minn. App. 1986) (``[b]ecause appellant is in the business of buying and selling real estate, his taxable income is not an accurate indicator of his cash flow,'' and trial court did not err in estimating income). Father claims that the ALJ erred by ignoring the depreciation of his assets and those of his business. See Freking v. Freking, 479 N.W.2d 736, 740 (Minn. App. 1992) (``total disregard'' of legitimate depreciation ``is reversible error''). The ALJ found father's net monthly income from ``wages, in kind income, and/or corporate profits'' to be ``at least $2,500.00.'' Because wages and corporate profits depend on corporate accounting which, in turn, addresses depreciation, some account of depreciation is implicit in the finding of father's income. Also, at the hearing, the ALJ asked mother's attorney how he calculated father's income. Counsel replied that adding father's claimed income and all depreciation claimed on the 1994 tax returns of father and his business produced a net monthly income of $4,159.84. By estimating father's net monthly income to be at least $2,500, the ALJ apparently credited father with significant depreciation. Father claims that under Otte v. Otte, 368 N.W.2d 293 (Minn. App. 1985), the ALJ erred by arbitrarily setting his income ``somewhere'' between his income with and without depreciation. In Otte, the district court found a support obligor's monthly income to be between $2,000 and $2,500 based on findings that the tax returns ``could not reflect the actual cash income of the parties available for living expenses[,]'' that the family's assets increased, and that the obligor had income from a farm and business. Id. at 295. This court remanded noting that the trial court's difficulty in addressing the income issue was ``manifest in its inability to estimate the income more accurately than $2,000 to $2,500 per month.'' Id. at 297. Here, the ALJ found an income amount based on consideration of the tax returns and financial documents of father and his business, how father's corporation does business and father's lifestyle, and father's failure to separate his financial dealings from those of the business. On this record, the ALJ's finding of father's income has the reasonable basis in fact required by Strauch. 2. The ALJ did not violate Minn. Stat. § 518.64, subd. 2 (Supp. 1995) by not finding the prior support award unreasonable and unfair. The order's conclusions of law state that the prior support order had been shown ``to be unreasonable and unfair.'' See Bissell v. Bissell, 291 Minn. 348, 351 n.1, 191 N.W.2d 425, 427 n.1 (1971) (findings of fact stated as conclusions of law are treated as findings of fact). 3. The ALJ awarded mother a judgment for $3,581.80 in medical-support arrears. Father claims he is not liable for this amount because medical coverage cost a flat amount regardless of how many people it covered and mother needed the insurance for her child from a prior relationship. He also claims that how the judgment amount was calculated is unclear. In finding father's arrears, the ALJ apportioned the insurance cost pro rata among all persons covered and concluded that father owed mother more than the $3,581.80 she sought. Any error in the calculation is harmless to father. See Minn. R. Civ. P. 61 (harmless error to be ignored). 4. Father claims that mother told him she would not seek reimbursement for medical insurance costs and that mother should be precluded from recovering them because she did not seek reimbursement until April 1995. This is an argument based on estoppel and laches. ``[E]quitable defenses are not available in an action based on accrued payments due under [a] decree of divorce.'' Ryan v. Ryan, 300 Minn. 244, 251 n.2, 219 N.W.2d 912, 916 n.2 (1974) (citation omitted). 5. Mother's request for attorney fees on appeal is denied. Affirmed.