Todd Michael Bauerly, petitioner, Appellant, vs. Suzanne Mary Bauerly, Respondent.

Todd Michael Bauerly, petitioner, Appellant, vs. Suzanne Mary Bauerly, Respondent. A06-557, Court of Appeals Unpublished, April 10, 2007.

This opinion will be unpublished and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

#A06-557

 

Todd Michael Bauerly, petitioner,
Appellant,
 
vs.
 
Suzanne Mary Bauerly,
Respondent.

 

Filed April 10, 2007

Affirmed in part, reversed in part, and remanded;

Motion granted in part.

Stoneburner, Judge

 

Wright County District Court

File No. 86F904002633

 

Alan J. Albrecht, 7066 Brooklyn Boulevard, Brooklyn Center, MN 55429 (for appellant)

 

Daniel J. Goldberg, Messerli & Kramer, P.A., 1800 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Dietzen, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            In this dissolution action, appellant-husband challenges the district court's award of sole physical custody of the minor children to respondent-wife; calculation of his net monthly income for purposes of setting child support; failure to continue the trial for completion of psychological evaluations; denial of his request for credit for alleged overpayment of child support; and adoption of wife's proposed findings of fact, conclusions of law, and order for judgment.  Because the record reflects that the district court independently decided the issues, the district court's findings, though minimal, support the award of custody, husband's claim for overpayment of support was not established on the record, and the district court did not abuse its discretion in denying a continuance for psychological evaluations, we affirm on those issues.  Because the district court did not calculate husband's net monthly income based on information that was current at the time of trial, we reverse and remand on that issue.

FACTS

 

            The ten-year marriage of appellant, Todd Michael Bauerly (husband), and respondent, Suzanne Mary Bauerly (wife), ended with a dissolution decree entered after a two-day trial.  The judgment awarded sole physical custody of the parties' two children to wife; calculated husband's net monthly income to be $5,015, based on a payroll check dated six months before the trial; calculated guideline child support to be $1,505; awarded maintenance to wife in the amount of $800 per month for 13 months; and awarded wife $40,000 of husband's approximately $98,000 401(k) plan, purportedly invading more than 50% of husband's nonmarital share of the plan.

            Husband moved for amended findings of fact and conclusions of law and judgment.  The district court granted some of husband's proposed amendments but did not amend the award of custody, child support, or maintenance, or the division of the 401(k).  Husband appealed,[1] but ordered only a portion of the trial transcript for this court's review.  Wife moved to limit the scope of review based on husband's failure to provide a complete transcript and that motion was deferred to the panel considering the merits of the appeal. 

D E C I S I O N

 

I.          Adoption of wife's proposed findings of fact and conclusions of law

 

            We first address husband's allegation that the district court erred in adopting verbatim wife's proposed findings of fact and conclusions of law.  "A district court's verbatim adoption of a party's proposed findings and conclusions of law is not reversible error per se."  Schallinger v. Schallinger, 699 N.W.2d 15, 23 (Minn. App. 2005), review denied (Minn. Sept. 28, 2005).  But such a practice is disfavored.  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  The district court's verbatim adoption of proposed findings raises the question of whether the district court "independently evaluated each party's testimony and evidence."  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  When a party alleges that the district court adopted proposed findings verbatim, we carefully review whether the district court's findings and conclusions are "detailed, specific and sufficient enough to enable meaningful review by this court."  Id.

            Although not contained in the record, the parties agree that after the trial, the district court told counsel that it was awarding physical custody to wife and outlined other conclusions of law in a chambers conference.  The district court also asked wife's attorney to draft proposed findings of fact based on the record and conclusions of law based on the discussion, to be approved by husband's counsel before submission to the district court.  Husband did not agree with wife's draft, and therefore, submitted his own proposed findings of fact and conclusions of law, accompanied by written argument supporting his proposal.  Wife then submitted her proposal, accompanied by a supporting letter.[2]  The district court adopted much of wife's proposal, but revised portions of wife's proposal consistent with husband's arguments.  The district court altered wife's proposed order by removing from proposed finding # 9: "Petitioner's discipline of the children has at times been excessive."  The district court also removed language reserving wife's request to move the children's residence from wife's proposed finding #11.  In finding #15, the district court modified the amount of wife's expected income consistent with husband's objection to the amount stated in wife's proposal.  Additionally, wife's proposed conclusions of law were changed to reflect the holiday parenting schedule set out in husband's proposal.  The district court's alteration of wife's proposal based on husband's proposal and arguments, coupled with the district court's later amendments based on husband's post-trial motion for amended findings, demonstrates that the district court independently considered the issues in this case and intentionally adopted findings proposed by each party.  Insofar as the findings are sufficient to support the conclusions of law, we decline to reverse merely because the district court adopted much of wife's proposal. 

II.        Scope of review

            Appellant bears the burden to provide an adequate record.  Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995).  When a transcript is not provided on appeal, our scope of review is "limited to determining whether the [district] court's findings of fact support its conclusions of law."  Am. Family Life Ins. Co. v. Noruk, 528 N.W.2d 921, 925 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995).  We will review legal issues if the record is adequate to do so.  Mesenbourg, 538 N.W.2d at 494. 

            Husband conceded at oral argument that our scope of review in this case is primarily limited to whether the district court's findings of fact support its conclusions of law, therefore, wife's motion to limit our scope of review is moot.  With regard to the calculation of husband's net monthly income, however, for which there is sufficient evidence in the record before us for meaningful review, our scope of review is not so limited.  Wife's motion to limit the scope of review is therefore granted in part.

III.       Custody

            Husband challenges the award of sole physical custody to wife and the sufficiency of the findings to support that award.  The district court has broad discretion to award custody.  Schallinger, 699 N.W.2d at 18-19.  In this case, because we are not reviewing the sufficiency of the evidence to support the district court's findings, we review the custody award to determine whether the district court improperly applied the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).  Minnesota law "leaves scant if any room for an appellate court to question the [district] court's balancing of best-interests considerations."  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).

            In making a custody determination, the district court must consider the 13 statutory factors enumerated in Minn. Stat. § 518.17, subd. 1(a) (2006).  It "may not use one factor to the exclusion of all others."  Id.  The district court "must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child."  Id.  But "[t]he court need not make specific findings concerning each . . . factor[] if the findings as a whole reflect that the trial court has taken the relevant statutory factors into consideration in reaching its decision."  Peterson v. Peterson, 393 N.W.2d 503, 505 (Minn. App. 1986).

            Husband agrees that the district court's findings "touched on" most of the statutory factors but argues that "given the lack of specificity, there is no way to review the record and determine whether the evidence supports the determination of the court."  Husband goes on to argue that the evidence does not support the findings.  But that argument is beyond the scope of review in this appeal.  We note that the record indicates both parents are caring and capable, and although we do not condone the district court's minimal custody findings, we are satisfied that the court considered each of the relevant statutory factors in reaching its decision.  Given the limited scope of review in this matter, we cannot say that the district court's findings do not support its conclusion to award sole physical custody to wife. 

IV.       Determination of husband's net income

            Husband argues that the district court should have based the calculation of his net monthly income on the most current evidence of his income, which, in this case, was a pay stub dated approximately two weeks before the trial.  That pay stub, on its face, indicates that it is the first pay check issued after husband changed his marital status from "married" to "single" and after husband reduced his federal exemptions from ten to three.  The earlier pay stub used by the district court to calculate husband's net monthly income showed federal and state-tax withholdings based on M-10, making husband's resulting take-home pay of $842 per month higher than his net income based on withholding based on S-3.[3] 

            "The court must determine current net income for purposes of setting child support."  Thomas v. Thomas, 407 N.W.2d 124, 127 (Minn. App. 1987).  We have remanded net-income determinations because the district court failed to use current income information.  See id.; Merrick v. Merrick, 440 N.W.2d 142, 146 (Minn. App. 1989); State, County of St. Louis v. Tinker, 601 N.W.2d 468, 471 (Minn. App. 1999).  In this case, there is no explanation by the district court for its failure to use evidence of husband's most current earnings for the calculation of his net monthly income.  We therefore reverse the finding of husband's net monthly income and child-support obligation and remand for recalculation based on the most current income evidence presented at trial, or an explanation of why the use of that evidence would not be appropriate.[4] 

V.        Denial of continuance for psychological evaluations

            Husband argues that the district court erred by failing to order a continuance or hold the record open to allow a psychological evaluation of respondent to be admitted into evidence.  "The granting of a continuance is a matter within the discretion of the [district] court and its ruling will not be reversed absent a showing of clear abuse of discretion."  Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1997).  "The test is whether a denial prejudices the outcome of the trial."  Weise v. Comm'r of Pub. Safety, 370 N.W.2d 676, 678 (Minn. App. 1985). 

            Although husband argues that there is psychological information regarding wife that would be applicable to the issues of custody and maintenance, he does not present any authority to support his apparent argument that he was prejudiced by this lack of evidence or that he is entitled to any particular relief on this issue.  This court declines to address allegations unsupported by legal analysis or citation.  Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994).  We note that husband argued for joint physical custody of the children, indicating that he did not, at the time of trial, consider wife unable or unfit to parent.

VI.       Denial of credit for in-kind support payments

            Husband relies on "Exhibit 3" to argue that he should have been given credit for in-kind support paid to wife and children before the time income withholding took effect for temporary-support payments.  But wife argues, and the district court's evidence log confirms, that Exhibit 3 was not admitted into evidence.  Furthermore, Minn. Stat. § 518 A. 52 (2006),[5] cited by husband as authority for his request, does not apply to the situation described by husband.  Because there is no evidence and no authority for this argument, we decline to address it.

            Affirmed in part, reversed in part, and remanded; motion granted in part.

[1] At oral argument, husband commendably informed the court that he considers the maintenance and property-division issues moot and withdrawn from the consideration of this court because the funds have been disbursed to wife and are no longer in existence, precluding any realistic remedy.  We appreciate husband's candor.

[2] Husband's proposed order was not in the district court file that was forwarded to this court.  On inquiry to the district court, wife's and husband's proposed orders and cover letters for those documents were provided, although husband's proposal, which ends at page 16, does not appear to be complete.

[3] We caution the use of pay stubs alone to determine net monthly income because monthly withholdings are subject to manipulation and may not reflect true tax liability.

[4] There was passing mention at the oral argument on appeal that husband's employment has changed since the judgment was entered.  That information is not in the record, however, we recognize that a determination of income and the child-support obligation at the time of the dissolution may impact later motions for modification.

[5] In his brief, husband cites Minn. Stat. § 518.642, which has been renumbered as Minn. Stat. § 518 A. 52 (2006).