State of Minnesota, Respondent, vs. Benjamin Ferriere, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

Laura Fischer Leighton, petitioner,
Respondent,

vs.

John Charles Leighton,
Appellant.

Hennepin County District Court
File No. DC218227

Jeanette A. Frederickson, Hessian & McKasy, P.A., 4700 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2228 (for respondent)

Cory D. Gilmer, 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

Considered and decided by Toussaint, Chief Judge, Harten, Judge, and Holtan, Judge.[*]

Appellant John Leighton appeals the district court's June 9, 1999, order denying his postdecree motion to modify child support. Because the record supports the district court's finding that appellant failed to provide documentation of his income from his current employment, we affirm.

Pursuant to their stipulation, the parties' 1997 dissolution decree awarded respondent Laura Leighton sole physical custody of the parties' child and monthly child support of $1,408. At the time the decree was entered, appellant's average net monthly income from his position with United Healthcare exceeded the maximum net monthly income of $5,635 considered for child support in accordance with the child support guidelines under Minn. Stat. § 518.551 (1996).

In January 1999, appellant served a motion to modify child support on the ground that his position with United Healthcare had been eliminated and that he had not had the opportunity to reach a similar income level from his new employment with Cresa Partners. Appellant's affidavit in support of the motion: (1) incorporates his February 22, 1999, letter to his counsel describing his departure from United Healthcare; (2) his job search process, and his earning potential at Cresa Partners; (3) indicates that he has an annual draw from his employment with Cresa Partners of $40,000, with the ability to earn commissions; (4) indicated that he expected to replace and ultimately surpass his previous income levels at United Healthcare; and (5) includes a copy of his response to respondent's interrogatories. In his response, appellant claimed monthly expenses of $4,823, exclusive of child support. The response to the interrogatories also refers to certain documents that are purportedly attached, including appellant's employment agreement with Cresa Partners and a copy of the only pay stub appellant had received to date. But our review of the record shows that these attachments are not included in appellant's district court submission. Appellant sought an order modifying his child support obligation based on a claimed $40,000 annual draw, plus 25% of his additional total net income for the year.

In her responsive affidavit opposing the motion, respondent states that she is an unemployed graduate student and that a reduction of child support from $1,408 to approximately $400 per month may result in respondent and the minor child becoming homeless. Respondent also provided copies of a letter from appellant's counsel declining respondent's request for a release from appellant so that respondent could obtain information about his position and compensation from Cresa Partners.

At the motion hearing, respondent's counsel stated that despite her repeated requests, appellant had provided only an unsigned sample contract with Cresa Partners. The hearing transcript indicates that appellant's counsel handed respondent's counsel an executed copy of appellant's employment agreement with Cresa Partners. But the transcript does not indicate that appellant's counsel moved for admission of the executed agreement. The trial court record does not contain either an unexecuted or executed copy of appellant's employment agreement with Cresa Partners.

Modification of child support is within the district court's discretion and this court will not reverse that decision absent an abuse of discretion. Rouland v. Thorson, 542 N.W.2d 681, 683 (Minn. App. 1996). The terms of an order respecting child support may be modified upon a showing of substantially decreased earnings of a party making the terms of the prior order unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (1998); Heaton v. Heaton, 329 N.W.2d 553, 554 (Minn. 1983). The moving party has the burden to show that the support terms of the prior order are unreasonable and unfair. Id. at 554.

Here, the district court concluded that appellant has not met his burden of showing a substantial decrease in earnings because he did not provide the court with sufficient information regarding his current financial circumstances. Our review of the trial court file supports the district court's finding that appellant did not provide the court with documentation of his income. An appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).

This court will not speculate, and appellant cannot complain, where inadequate documentation leads to the district court's refusal to modify a decree. Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn. App. 1995). Here, appellant did not meet his burden to show that there has been a substantial reduction in his income. Nor did appellant demonstrate that the prior support award is unreasonable and unfair, in view of appellant's admission that he has not reduced his own living expenses. See Fuller v. Glover, 414 N.W.2d 222, 225 (Minn. App. 1987) (obligor's loss of income did not constitute change in circumstances warranting modification of child support where there had been no decline in obligor's lifestyle).

In her brief, respondent requests an award of attorney fees on appeal. We decline to consider the attorney fees request at this time because respondent has not filed a proper motion for an award of attorney fees under Minn. R. Civ. App. P. 139.06, subd. 1.

 Affirmed.

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