Maureen A. Ward-Middlestedt, petitioner, Respondent, vs. Daniel K. Middlestedt, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

  STATE OF MINNESOTA

IN COURT OF APPEALS

C4-02-2164

 

Maureen A. Ward-Middlestedt, petitioner,
Respondent,
 
vs.
 
Daniel K. Middlestedt,
Appellant.

 

Filed September 9, 2003

Affirmed in part, reversed in part, and remanded

Peterson, Judge

 

Hennepin County District Court

File No. 221907

 

Amy Klobuchar, Hennepin County Attorney, Timothy Jayson, Assistant County Attorney, 110 South Fourth Street, First Floor, Minneapolis, MN  55401 (for respondent)

 

Daniel K. Middlestedt, P.O. Box 1227, Mission, South Dakota, 57555 (pro se appellant)

 

            Considered and decided by Wright, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from a district court order affirming a child-support magistrate's order increasing appellant-father Daniel K. Middlestedt's child-support obligation, father argues that the district court erred when it (1) disallowed deductions when calculating his net income; (2) denied his motion to compel discovery; (3) failed to make the findings necessary to support a deviation from the child-support guidelines based on income he received from a tree farm; and (4) included income from the tree farm in his net income.  We affirm in part, reverse in part, and remand.

FACTS

 

The parties' marriage was dissolved in 1996.  Respondent-mother Maureen A. Ward-Middlestedt was awarded sole physical custody of their three minor children, and father was ordered to pay $332.55 per month for child support based on a $979 net monthly income.  In February 2002, respondent Hennepin County moved to increase child support.  Father responded by moving to modify child support.  During the proceedings, father served mother with a motion to compel discovery.

A child-support magistrate (CSM) found that father currently lives in South Dakota where he teaches school full time, earning a gross monthly income of $2030.  The CSM denied father's motion to compel discovery and ordered an increase in father's support obligation to $664, which included a $100 upward deviation from the guidelines amount.  The district court confirmed the CSM's order. 

D E C I S I O N

            District courts review a CSM's decision de novo.  Blonigen v. Blonigen, 621 N.W.2d 276, 280 (Minn. App. 2001), review denied (Minn. Mar. 13, 2001).  "We review the district court's decision confirming the CSM's order under an abuse-of-discretion standard."  Davis v. Davis, 631 N.W.2d 822, 826 (Minn. App. 2001).

1.         Father argues that the district court incorrectly determined his net monthly income under Minn. Stat. 518.551, subd. 5(b) (2002).  He contends that his net income should be determined by subtracting from his $2,030 gross monthly income the deductions that appear on the pay stubs he submitted. 

Net income is defined as total monthly income less federal and state income taxes[1]; social security deductions; reasonable pension deductions; union dues; cost of dependent health-insurance coverage, individual or group health/hospitalizations coverage or an amount for actual medical expenses; and a child-support or maintenance order currently being paid.  Id.    

The pay stubs that father submitted indicate that he is paid a gross salary of $1,015.06 twice each month, which supports the finding that father's gross monthly income is $2,030.  The pay stubs also indicate that the following deductions are taken from each semi-monthly paycheck:

                                                            Amount per paycheck              Monthly amount

Federal Income taxes                                    $78.29                                   $156.58

Social Security                                              62.93                                       125.86

Medicare                                                        14.72                                         29.44

Retirement                                                     50.75                                       101.50

Health Insurance                                            73.36                                       146.72

SDEA                                                              22.05                                        44.10

The district court allowed deductions of $170.66 for federal income taxes and social security taxes, $101.50 for reasonable pension, and $146.72 for health insurance.  The district court's order does not indicate why the deduction for federal income taxes and social security taxes was limited to $170.66, but we note that the sum of the amounts deducted from each semi-monthly paycheck for federal income taxes and social security taxes and the amount deducted monthly for Medicare is $170.66 ($78.29 + 62.93 + 29.44 = $170.66).  It appears that the district court mistakenly treated the semi-monthly deductions for federal income taxes and social security taxes as monthly deductions.  Because there is no explanation of another basis for allowing only $170.66 as a deduction for federal income taxes and social security taxes, we reverse and remand for a determination of father's net monthly income that recognizes the taxes he is actually obligated to pay on his gross monthly income.[2]

Father also argues that when calculating his net monthly income, the district court should have allowed a deduction for union dues.  Father contends that the deduction on his pay stubs labeled SDEA is for union dues that he pays to the South Dakota Education Association.  Minn. Stat. § 518.551, subd. 5(b), provides that union dues are to be subtracted from gross income when determining net income.  Therefore, on remand, the district court shall also determine whether the deduction on father's pay stubs labeled SDEA is for union dues that should be deducted from father's gross income when determining net income for support purposes.

2.        The CSM denied father's motion to compel discovery.  The CSM stated that the motion was denied pursuant to Minn. R. Gen. Pract. 361.04 on the basis that father's motion was brought in an effort to harass mother.  Father contends that the CSM's powers are child-support related and that the CSM had no jurisdiction under Minn. Stat. § 484.702, subds. 1, 3 (2002), to consider his motion to compel discovery.  Father offers no explanation or argument to support this claim.

Minn. Stat. § 484.702, subds. 1, 3, direct the supreme court to create an expedited child-support hearing process and grant the chief judge of each judicial district authority to appoint CSMs, with confirmation by the supreme court.  Minn. R. Gen. Prac. 361.04, subd. 1, states:

Any additional means of discovery available under the Minnesota Rules of Civil Procedure may be allowed only by order of the child support magistrate.  The party seeking discovery shall bring a motion before the child support magistrate for an order permitting additional means of discovery.  The motion shall include the reason for the request and shall notify the other parties of the opportunity to respond within five (5) days.  The party seeking discovery has the burden of showing that the discovery is needed for the party's case, is not for purposes of delay or harassment, and that the issues or amounts in dispute justify the requested discovery.  The motion shall be decided without a hearing unless the child support magistrate determines that a hearing is necessary.  The child support magistrate shall issue an order granting or denying the discovery motion.

 

            Under the plain language of the rule, the CSM had authority to consider father's motion and to issue an order granting or denying the motion.    

3.         Father argues that the district court did not make the necessary findings to support an upward deviation from the child-support guidelines.  "If the court deviates from the guidelines, the court shall make written findings giving the amount of support calculated under the guidelines, the reasons for the deviation, and shall specifically address the criteria in paragraph (c) and how the deviation serves the best interest of the child."  Minn. Stat. § 518.551, subd. 5(i). 

            Minn. Stat. § 518.551, subd. 5(c)(1), provides that when determining whether to deviate from the guidelines, the district court shall take into consideration "all earnings, income, and resources of the parents, including real and personal property, but excluding income from excess employment of the obligor or obligee."

            The district court found:

            14.       [Father] failed to disclose that he is the co-owner of a Tree Farm located in Isanti County, Minnesota.  [Father] inherited this property through a Family Trust fund.  This information was disclosed by [mother] during this hearing.  [Father] testified that he does not earn any business income from the Tree Farm but conceded that in the past, the Tree Farm generated income from the sale of lumber and firewood.  The estimated value of the Tree Farm in 1994 was $70,000, according to [father's] testimony.  The Tree Farm has a home, garage and a shed located on the property.  [Father] and his brother reside on this property at various points of time during the year.

 

            15.       [Father's] testimony regarding the Tree Farm is not credible.  [Father] failed to disclose the asset during the proceeding.  [Father] has been less than truthful with the information that he provided to the County at the commencement of the proceeding.

 

            . . . .

 

            19.       Pursuant to Minn. Stat. § 518.551, subd. 5, the Minnesota Child Support Guidelines, [father's] child support obligation would be $564.00 per month.  In light of [father's] failure to disclose the Tree Farm asset and lack of verification regarding the income generated by the Tree Farm, this Court is deviating upward in the amount of $100.00 per month for a total monthly support obligation of $664.00.

 

            Father challenges the finding that he failed to disclose the tree farm.  He contends that the tree farm was referred to in the dissolution judgment.  But the judgment only refers to an undivided one-third interest in a parcel of real estate that father inherited from his father; it does not indicate that the real estate is used for a tree farm.  Father also contends that the tree farm is referred to in his motion requesting district court review of the CSM's order.  But this motion was made after the hearing on the motion to modify child support, and, therefore, the reference to the tree farm is not evidence that father disclosed the tree farm before, or during, the hearing on the motion.  See Minn. F. Gen. Pract. 377.09, subds. 3,4 (review of CJM's decision to occur on record before CSM unless reviewing officer directs otherwise).  Father also contends that because the obligee/obligor fact sheet that he submitted to the court lists monthly expenses that include real-estate taxes and property-insurance payments, he disclosed the tree farm.  But the fact sheet does not identify the property for which these payments are made, and there is no reason why anyone reading the sheet would conclude that father owns an interest in a tree farm.  Finally, father contends that the tree farm was discussed in detail at the July 9 hearing on the motion to modify child support.  But the district court's findings indicate that mother disclosed the information about the tree farm at the hearing, and father has not provided a transcript of the hearing.  Without a transcript, there is no basis for this court to review father's contention that the tree farm was discussed at the hearing.  See Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995) ("An appellant has the burden to provide an adequate record.").

            Father argues that the district court's findings are inadequate because it is unclear what portion of his testimony the court found was not credible.  It is apparent from the court's findings, however, that the court found that father's testimony that he does not receive any income from the tree farm was not credible.

4.         Father argues that even if he did receive income from the tree farm, any income received is not relevant to a determination of his net income because Minn. Stat. § 518.551, subd. 5(b)(2), provides that net income does not include "compensation received by a party for employment in excess of a 40-hour work week."  But the district court's findings do not indicate that the court found that any income father receives from the tree farm is compensation for employment.  The court's findings specifically refer to business income from the tree farm, which could include income attributable to father's ownership of the farm, rather than income from excess employment on the farm.  Under Minn. Stat. § 518.551(b)(2)(ii) (2002), father has the burden of demonstrating that income is from excess employment, and father did not meet this burden.

Affirmed in part, reversed in part, and remanded.

[1]  South Dakota does not have a state income tax.

 

[2] The district court order indicates that the federal income tax deduction allowed is based on a filing status of single with one exemption, and father's pay stubs indicate that father's income tax withholding is based on a filing status of single with two exemptions.  Different numbers of exemptions could account for a difference between the amount of income taxes withheld and the amount used as a deduction in an order.  But it does not account for the difference here because taxes paid by a taxpayer with one exemption are more than taxes paid by a taxpayer with two exemptions, and the amount used in the order based on one exemption is less than the amount withheld based on two exemptions.